Her Majesty the Queen v. Chafe
[Indexed as: R. v. Chafe]
Ontario Reports Court of Appeal for Ontario Sharpe, Benotto and D.M. Brown JJ.A. February 15, 2019
145 O.R. (3d) 783 | 2019 ONCA 113
Case Summary
Criminal law — Trial — Charge to jury — Demeanour
Accused convicted of sexually assaulting female friend. Accused's failure to strongly deny vague allegations of wrongdoing when confronted soon after alleged assault forming significant part of Crown's case. Crown's closing misstating evidence regarding confrontation and accused's statements. Assuming such evidence admissible, trial judge erring in failing to instruct jury on significant dangers of relying on reaction evidence including that jury should place no weight on response to vague allegation, that there is no "normal" way to react to allegation and that failure to react in particular manner isn't admission of guilt. Accused's appeal allowed.
Criminal law — Trial — Charge to jury — Evidence — Identification
Accused convicted of sexually assaulting female friend. Case resting largely on complainant's recognition of accused as man she saw standing in doorway of her room for several seconds immediately after waking up. Trial judge instructing jury on frailties of identification evidence but adding that recognition of known person is different than identification of stranger. Trial judge erroneously bolstering the identification evidence by stating that complainant knew accused only man staying at suite but failing to note that other men had been present that evening. Instruction on recognition evidence wrong in law as recognition evidence has same frailties as identification evidence. Accused's appeal allowed.
Facts
The accused was convicted of sexual assault. The complainant was a friend of the accused and his girlfriend A.M. The three shared a two-bedroom suite in a college residence while attending a wedding. The accused and the complainant both had a lot to drink at the wedding reception. The accused testified that he changed out of his suit when he returned to the suite and went to bed. Other friends, some of whom were male, were drinking in the living room of the suite to continue the party after the wedding. The complainant testified that she went to bed and fell asleep as soon as she returned to the residence and that she woke up at some point during the night to find a man standing in the door of her bedroom masturbating. In her initial statement to the police, she said the man was wearing a suit. It was dark, and the interaction lasted a couple of seconds. She identified the man as the accused. Later that night, she felt someone in bed behind her. The person touched her buttocks and ejaculated on her. She did not see the man but assumed, based on the earlier encounter, that it was the accused. The complainant told the accused's girlfriend, A.M., that "something really bad" happened between her and the accused but she gave A.M. no details. A.M. said she gained the impression that the complainant meant that the accused had sexually assaulted the complainant. A.M., who lived with the accused, ran to their apartment, and packed her bags to leave. She told the accused that she knew "what he had done". A.M. could not recall his words but had understood the accused to mean that he did not remember. A.M. continued to talk to the accused over the next few months and she asked him if he had "grabbed" the complainant. She couldn't recall his reply but testified that she had "the impression" that he was acknowledging the accusation. The accused testified that he was trying to avoid a confrontation with A.M., but he was intending to convey that he denied the allegations. The accused appealed his conviction.
Held, the appeal should be allowed.
The trial judge instructed the jury on the frailties of identification evidence. However, he went on to say that recognition of a known person is different than identification of a stranger. That statement was wrong in law. Recognition evidence is not different from identification evidence. It is subject to the same frailties and the same risks. The trial judge's error was compounded when he immediately stated that the complainant was aware that the accused was the only male staying in the residence suite that night. That statement was misleading as there was evidence that other males had come to the residence after the wedding to continue the party. The trial judge's statement artificially bolstered the identification evidence by incorrectly implying that the man in the doorway had to be the accused because he was the only male staying in the suite.
The accused's failure to strongly deny the vague allegations of wrongdoing made by A.M. when she confronted him after speaking to the complainant formed a significant part of the Crown's case. In addition, during the Crown's closing, the evidence about the confrontation and the accused's statements was emphasized. The trial judge erred in failing to instruct the jury on the dangers of relying on reaction evidence. Assuming without deciding that such evidence is admissible, the trial judge erred in failing to instruct jury on its significant dangers. They should have been warned about the danger of relying on reaction evidence, that they should place no weight on the accused's response to a vague allegation, they should not rely on A.M.'s "impression" of what the accused's reaction was, that there is no "normal" way to react to an allegation and that the accused's failure to react in a particular way was not an admission of guilt.
Both the recognition evidence and the evidence of the accused's reactions to the accusations were significant parts of the Crown's case with respect to the key issue of identity. The trial judge's failure to properly instruct the jury on those matters was seriously prejudicial to the accused's fair trial rights. Accordingly, the appeal should be allowed despite the failure of trial defence counsel to object to the charge.
Procedural History
APPEAL by the accused from the conviction entered on January 20, 2017 and the sentence imposed on May 16, 2017 by G.E. Taylor J. of the Superior Court of Justice, sitting with a jury.
Counsel:
- Scott Hutchison, for appellant
- Sarah Shaikh, for respondent
The judgment of the court was delivered by
Judgment
[1] Introduction
BENOTTO J.A.: — The appellant was convicted of sexual assault against a friend of his and of his long-time girlfriend. He appeals his conviction on the basis that the trial judge erred in law when instructing the jury on recognition evidence and failed to provide the jury with guidance about assessing his reaction when his girlfriend confronted him about the allegations.
[2] Disposition
For the following reasons, I would allow the appeal.
Facts
[3] Background and Relationship
The appellant and A.M. met in high school. They began dating in 2004 while at Dalhousie University. There, they met the complainant. The three became friends. Eventually they all moved to Toronto and remained friends. The complainant and A.M. were particularly close, and the complainant was fond of the appellant.
[4] The Wedding and Accommodation
On July 12, 2012 the appellant, A.M., and the complainant, together with other friends from university, went to a wedding in Kitchener. The three friends drove from Toronto to Kitchener with another couple and booked into the Conestoga College residence. The appellant, A.M., and the complainant shared a suite which had two bedrooms. The appellant and A.M. stayed in one bedroom, the complainant in the other. There was also small shared communal living space and bathroom. The couple they had driven with stayed in another suite in the same residence.
[5] The Wedding Reception and Return to Residence
The complainant was drinking alcohol before, during and after the wedding reception. She testified that on a scale of drunkenness she was a seven out of ten. A.M. thought it was higher and put her friend at an eight on the scale. The complainant agreed that people seeing her at the reception could tell she had been drinking quite a bit. The appellant testified that she was drinking wine straight from the bottle and spilled wine on his new tailored suit. All three left the reception together around 11:00 p.m. and began to make their way back to the residence. It took a long time to walk back to the residence because the complainant was stumbling. At one point she stopped on the side of the road to urinate.
[6] Events at the Residence
Once at the residence the appellant testified that he changed out of his clothes which were wet with the wine and put on boxer shorts and a t-shirt. He and A.M. went to bed. He did not have sex with A.M. because red wine made him unable to achieve an erection. He felt nauseous. He got up from bed and was sick in the washroom. On his way to the washroom, he saw several friends in the common room. A.M. testified that she heard four or five people including the distinctive voice of the person they had driven to Kitchener with. Other witnesses testified that several wedding-goers had gone back to the residence to continue the party. Some were going from room to room.
[7] The Doorway Incident
The complainant testified that, once back at the residence, she went to bed and fell right asleep. At some point during the night, she woke up to find a man standing in the door of her bedroom masturbating. She told him to "fuck off", threw a pillow at him and went back to sleep. In her initial statement to the police she said the man was wearing a suit. It was dark and the interaction lasted a couple of seconds. She identified the man as the appellant.
[8] The Bedroom Incident and Morning After
Later that night, she felt someone in bed behind her stroking his penis. The person touched her buttocks and ejaculated on her. She did not see the man in bed with her but assumed — based on the earlier encounter — that it was the appellant. The man then left the room and shortly after returned. She heard the clicking sound of a camera. After a while, the complainant got out of bed to go to the bathroom. She saw a camera in the bathroom but there were no pictures on it. She testified that she saw the appellant sitting in the common area wearing a t-shirt and boxer shorts. She asked him what was wrong with him and returned to her bedroom. By this time, the sun was starting to come up.
[9] Return to Toronto
The next morning, the complainant, A.M., and the appellant met up with two other couples for breakfast and drove back to Toronto. Nothing was said about the events of the night before and everyone acted normally.
[10] Disclosure to A.M.
Back in Toronto, the complainant told her mother and another friend what had happened. She then told A.M. that "something really bad" happened between her and the appellant. At trial the complainant said she did not tell A.M. the details of what happened. A.M. testified that she could not recall the words the complainant used but was left with the impression that the appellant had sexually assaulted her.
[11] Delay in Reporting
The complainant decided not to go to the police. She changed her mind two years later during the extensively publicized sexual assault trial of Jian Ghomeshi and eventually went to the police in October 2014. A.M., however, confronted the appellant immediately.
[12] A.M.'s Confrontation with the Appellant
After speaking to the complainant, A.M. ran to the apartment she shared with the appellant, packed her bags and prepared to leave. She confronted the appellant saying that her friend "told me what you did". She could not recall his exact response, but it was generally that he did not remember. Within five minutes she left and she later moved out.
[13] Subsequent Conversations
Over the next four months A.M. spoke by phone with the appellant. She testified that she asked him if he had "grabbed" the complainant. A.M. could not recall his exact words in response, but she had the impression that he was acknowledging the allegation. She became convinced that he had done so. The appellant testified that, if he said that he did not remember, he was trying to avoid confrontation but, in his mind, it was a denial.
[14] Trial and Conviction
The complainant went to the police in October 2014 and the trial took place in 2017.
The Jury Charge
[15] Advance Provision of Charge
The trial judge prepared a draft charge which he provided to counsel in advance. There were no objections to the charge.
[16] Identification Instruction
The trial judge told the jury that the issue in the case was whether the events took place and whether the appellant committed them. Since the complainant did not see the person in bed with her, the jury was given the standard instruction on circumstantial evidence. The jury was also told that the identity of the person standing in the doorway masturbating was important. As to identity, the trial judge said:
An important part of the Crown's evidence in this case is the identification of [the appellant] by [the complainant] as the person standing in the door of the bedroom masturbating. You must be very cautious about relying on eyewitness testimony if you find [the appellant] guilty of sexual assault. In the past, there have been miscarriages of justice. Innocent persons have been wrongfully convicted because eyewitnesses have made honest mistakes in identifying the person whom they saw committing a crime. Eyewitness identification may seem more reliable than it actually is because it is given by a credible and convincing witness who honestly, but perhaps mistakenly, believes that the accused is the person who they saw on a particular occasion. Identification evidence is an expression by a witness of their belief or impression. It is quite possible for an honest witness to make a mistaken identification. Honest people do make mistakes. An apparently convincing witness can be mistaken. Little connection exists between the great confidence of a witness and the correctness of her identification and the accuracy of the identification. Confidence and accuracy are two different things. Even a very confident witness may be honestly mistaken or entirely wrong about her identification.
When you decide how much or little to believe of or rely upon the identification evidence, everything that I told you earlier — which I haven't told you yet, but I will — about assessing evidence, applies to the identification by [the complainant] of [the appellant] as the person standing in the doorway to her bedroom. In addition, you should keep in mind several factors that relate specifically to the eyewitness identification of [the appellant] as the person standing in the doorway to the bedroom. It was dark in the bedroom. [The complainant] had just awoken from sleep. [The complainant] had consumed a considerable amount of alcohol earlier in the evening. [The complainant] observed the person in the doorway for three or four seconds and there was no light behind the person. [The complainant] could not describe what the person standing in the doorway was wearing, although in a statement to the police in November 2014, she said that the person in the doorway was wearing clothes that he had worn to the wedding reception. On the other hand, [the appellant] was known to [the complainant]. Identification of a known person is different than identification of a stranger. Also [the complainant] was aware that [the appellant] was the only male staying in the residence suite that night.
(Emphasis added)
Issues
[17] Grounds of Appeal
The appellant raises two issues with respect to the jury charge. The first is based on what was said, the second is based on what was not said. The appellant submits first that the charge on identity was wrong in law and second that the trial judge erred by not giving the jury guidance on how to assess the evidence of the appellant's reaction when confronted by A.M.
[18] Crown's Response
The respondent submits that the trial judge properly charged the jury on the frailties of identification evidence and explained the principles of assessing evidence. The evidence of the appellant's reaction to the allegations by A.M. was properly before the jury and no specific instruction was necessary. Further, the appellant raised no objections at trial and approved of the final jury instructions.
Analysis
Recognition Evidence and Identification Evidence
[19] The Role of the Jury
One of the strengths of the jury system is that lay persons, those outside of the justice system, are called on to assess the evidence. In that capacity, they bring their collective everyday experiences to determine the credibility and reliability of witnesses. Indeed, jurors are routinely told to use and rely on their common sense, in other words, the means by which they make decisions and come to conclusions in their everyday lives.
[20] Limitations of Common Sense
In some situations, however, a straightforward "common sense" analysis can be misleading and result in a wrongful conviction. In these situations, lay persons need to be instructed about deceptively influential types of evidence that those in the justice system are aware of.
[21] Categories of Evidence Requiring Special Instruction
Two types of evidence that fall into this category are at issue here: eyewitness identification and the accused's reaction to accusations.
[22] Recognition Evidence as Particularly Persuasive
Eyewitness identification is very persuasive for a lay person. The law has learned — and jurors are told — about the honest but mistaken belief that may lead to wrongful conviction. Recognition evidence is, within that category, even more persuasive. A juror may understandably jump to the conclusion that, because the person was known to the witness, the identification is reliable.
[23] Reaction Evidence as Seemingly Conclusive
Likewise, evidence of a person's reaction to an accusation may seem conclusive to a lay person. If an accused did not deny an allegation, it may be alluring to conclude that the accusation was correct. Here, too, the jurors need to be given more than the standard instruction with respect to the assessment of evidence.
[24] The Trial Judge's Educational Role
These categories of evidence require the trial judge to educate the jury about the experience that those in the justice system have gained from relying on assumptions that may be deceptively influential. As the appellant's counsel submitted, the trial judge needs to help the jury learn "the lessons that the law has learned at great cost".
[25] Structure of Analysis
I will address both categories of evidence in the context of the evidence and trial judge's charge to the jury.
Identification Instruction
[26] Identity as Central Issue
The case against the appellant rested entirely on identity. The identity rested entirely on the complainant's recognition of the appellant as the man in the doorway.
[27] Correct Elements of the Charge
The trial judge correctly instructed the jury with respect to identification evidence. He cautioned about guarding against honest but mistaken belief. He referred to the frailties in the complainant's evidence: she had just woken up; she had consumed a lot of alcohol; she saw the man for three to four seconds; she initially told the police the man was wearing the suit he wore to the wedding.
[28] The Erroneous Statement
The respondent submits that this instruction properly cautioned the jury about the dangers inherent in eyewitness identification. I do not agree because the trial judge added the following sentence to the end of his instruction on identification:
On the other hand, [the appellant] was known to the complainant. Identification of a known person is different than identification of a stranger.
(Emphasis added)
[29] Recognition Evidence is Not Different from Identification Evidence
This sentence effectively negated the identification instruction and is wrong in law. Recognition evidence is not "different" from identification evidence. It is subject to the same frailties and the same risks. This is significant where, as here, a jury may be quick to assume that, because the witness knows the person, the identification must be correct. A trier of fact could intuitively place undue reliance on the evidence of recognition without a clear instruction outlining the frailties. The trier of fact, whether judge or jury, must approach the evidence of recognition with the same caution as identification evidence and the evidence must have the same level of reliability.
[30] Factors Affecting Reliability
Even though the witness knows the person identified, the time to observe, the circumstances of the observation, and the conflicting evidence constitute factors which the trier of fact must grapple with in order to determine reliability. The usual dangers of eyewitness identification exist in a case of alleged recognition: see R. v. Miller, [1998] O.J. No. 5356, 131 C.C.C. (3d) 141 (C.A.), at para. 27.
[31] Recognition Evidence as Form of Identification Evidence
With respect to recognition evidence, this court said in R. v. Olliffe, [2015] O.J. No. 1803, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 38:
Triers of fact are entitled to take into account whether the witness is acquainted with the accused when assessing the reliability of the identification evidence. Where a witness is known to the accused, the testimony identifying the accused is sometimes referred to as recognition evidence.
[32] Same Caution Required
It is crucial to remember, though, that recognition evidence is a form of identification evidence. The same level of assessment of the evidence must apply. Continuing on in Olliffe, at para. 39:
It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply, and the same caution must be taken in considering its reliability as in dealing with any other identification evidence.
[Citations omitted]
[33] Compounding Error
By describing recognition evidence as different from identification evidence, the trial judge gave the wrong instruction. This error was compounded by the sentence immediately following this section in the charge when he said:
Also [the complainant] was aware that [the appellant] was the only male staying in the residence suite that night.
[34] Misleading Statement About Other Males
This was misleading. While the appellant may have been the only male "staying" in the particular suite, there was evidence that other males had come to the residence after the wedding to continue the party and were occasionally wandering around. The judge's comment artificially bolstered the identification evidence by incorrectly implying that the man in the doorway had to be the appellant because he was the only male staying in the suite.
The Appellant's Reaction to the Accusations
[35] Second Issue
I turn now to the second issue with respect to the jury charge.
[36] Common Sense and Denial
Common sense may lead a juror to the conclusion that someone who does not vehemently deny an accusation must be guilty of the charge.
[37] The Confrontation
The appellant was confronted by A.M. while she was packing to leave their apartment. The confrontation lasted less than five minutes. She testified that she said that the complainant "told me what you did" and that the appellant "said something like, I am afraid I did that" and that he "did not remember". The appellant testified that he said"what are you talking about"?
[38] Limited Probative Value of Reaction Evidence
In R. v. Levert, [2001] O.J. No. 3907, 159 C.C.C. (3d) 71 (C.A.), this court held that evidence of an accused's reaction to allegations is of limited if any probative value. The inferences rest on assumptions about how a "normal" person would react and judicial experience has taught us that this is often wrong. In Levert, Rosenberg J.A. said, at para. 27:
The probative value of this type of evidence is highly suspect. In the two recent cases of Susan Nelles and Guy Paul Morin use of the accused's demeanour was found to have played a part in wrongful prosecution. The Report of The Commission on Proceedings Involving Guy Paul Morin, 1998 . . . contains an extensive discussion of the dangers of admitting such demeanour evidence. The expert and other evidence introduced at the Commission strongly suggests that this evidence can be highly suspect and should be admitted at a criminal trial with caution. Perceptions of guilt based on demeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal.
[Footnote omitted]
[39] Application Beyond Demeanour Evidence
The respondent submits that the reaction of the appellant was not demeanour evidence. However, in my view, the same considerations apply. And in the cases referred to by this court in the above excerpt, it was the reaction of the accused that played a part in the wrongful prosecution.
[40] Reaction Based on Assumption of Normality
The reaction of the accused to an allegation rests on an assumption of what is a normal reaction. In R. v. W. (J.S.), [2013] O.J. No. 4409, 2013 ONCA 593, 301 C.C.C. (3d) 252, the appellant's conviction was overturned because the trial judge relied on his reaction to the charge. However, the appellant was not told where, when or how he was alleged to have fondled the complainant. Tulloch J.A. speaking for this court said, at para. 47:
[The appellant's] failure to make an unequivocal denial without knowing the specifics of the allegation should not have been automatically construed as evidence that his testimony was incredible.
And, at para. 49:
To completely discount the entire evidence of an accused because he did not immediately and unequivocally deny a vague allegation constitutes an error of law on the part of the trial judge: Levert, at paras. 27-28.
[41] Reaction Evidence as Significant Part of Crown's Case
The respondent submits that this is not a W. (J.S.) situation because in that case the response of the accused was the sole basis for conviction by the trial judge and here there was other evidence on which to base the conviction. I do not agree. The appellant's response to the accusations by A.M. formed a significant part of the Crown's case. Crown counsel's closing submissions demonstrate this. When speaking about the confrontation by A.M., the trial Crown said:
It was in this moment that the circumstances cried out for a denial. He did not deny it.
Even on his own evidence he also did not ever deny it. He always relied on his lack of memory of the incident. That does not assure your life partner of your innocence. It makes no sense that he did not deny sexually assaulting the complainant if he did not do it.
[42] Vague Allegations Without Details
In fact, the appellant could not deny "it" because he did not know what "it" was. The appellant was given no details about the allegations because A.M. did not know the details of the allegations. And A.M. did not know the details of the allegations because the complainant had not told her. She just had the impression that the appellant had been sexually inappropriate. The principles in W. (J.S.) apply.
[43] Crown's Mischaracterization of Evidence
The Crown's closing also referred to the evidence of A.M. that she asked the appellant if he "grabbed" the complainant:
A.M. asked [the appellant] if he grabbed [the complainant] and he agreed that he had. He said, I feel like a monster and I don't know why you're even still talking to me.
[44] Inaccuracy in Crown's Closing
This is inaccurate. First, the appellant testified that he did not say that he had grabbed the complainant, and instead he said"you must think I am a monster". Second, and more importantly, the complainant testified that she never used the word "grab". It was never part of her accusation against the appellant. This in turn diminished the probative value of A.M.'s evidence that she asked the appellant "if he grabbed [the complainant]".
[45] Required Jury Instructions on Reaction Evidence
I make no comment as to whether this evidence was even admissible in the first place. Given that it was admitted, it was incumbent on the trial judge to advise the jury of the dangers of relying on it. This would include an instruction that they should place no weight on his response to an accusation when he was given no details; that there is no "normal" way for a person to respond when faced with an accusation of wrongdoing; that failure to recall is not an admission; and that they should not rely on A.M.'s "impression" of what his reaction meant in the face of his explanations. In short, the admonition from Levert should have been used to instruct the jury with respect to this evidence. Without these directions, the jury was left with the suggestion that the appellant had confessed to the charge.
[46] Failure to Object Does Not Cure Error
The respondent submits that trial counsel had the opportunity to vet the jury charge in advance and did not request a change to the recognition evidence error, nor seek a broader instruction on the reaction of the appellant. This fact does not save the errors of law contained in this charge. As this court held in R. v. Pintar (1996), 30 O.R. (3d) 483, [1996] O.J. No. 3451 (C.A.), at p. 519 O.R.:
That is not to say, however, that counsel's silence will prove fatal in all such cases. Failure to object does not relieve trial judges from their obligation to relate the evidence to the issues. In the final analysis, regard must be had to the importance of the issue; the significance of the evidence in relation to that issue and the prejudicial effect occasioned by the inadequate instruction.
[47] Serious Prejudice to Fair Trial Rights
Both the recognition evidence and the evidence of the appellant's reactions to the accusations were significant parts of the Crown's case with respect to the key issue of identity. The trial judge's failure to properly instruct the jury on these matters was seriously prejudicial to the appellant's fair trial rights. Accordingly, in spite of defence counsel's failure to object, I would give effect to both grounds of appeal.
Disposition
[48] Order
I would allow the appeal, set aside the conviction and order a new trial, if the Crown decides it wishes to pursue the matter. Consequently, there is no need to address the sentence appeal.
Appeal allowed.
End of Document
