WARNING The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4 or 486.6 of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;
(b) on application made by the victim, the prosecutor or any such witness, make the order; and
(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order;
(b) on application of the victim or the prosecutor, make the order; and
(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall
(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;
(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and
(c) in any event, advise the prosecutor of their duty under subsection (3.2).
(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have
(a) informed the witnesses and the victim who are the subject of the order of its existence;
(b) determined whether they wish to be the subject of the order; and
(4) An order made under this section does not apply in either of the following circumstances:
(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or
(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.
(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.
486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,
(a) the person knowingly failed to comply with the order;
(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and
(c) a warning to the individual is not appropriate.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
COURT OF APPEAL FOR ONTARIO DATE: 20240717 DOCKET: COA-22-CR-0129 Benotto, Favreau and Madsen JJ.A.
BETWEEN
His Majesty the King Respondent
and
A.W. Appellant
Counsel: Eric Neubauer, for the appellant Avene Derwa, for the respondent
Heard: June 4, 2024
On appeal from the conviction entered on March 5, 2022 by Justice Alexander Sosna of the Superior Court of Justice, sitting with a jury.
Overview
1On March 5, 2022, following a six-day trial, the appellant was convicted by a jury of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. The sexual assault took place in or around 1983 and was reported approximately 37 years later, in 2020. The complainant did not see her assailant but testified that she knew him from high school and recognized his voice during the assault.
2The appellant appeals his conviction on the basis that the trial judge erred in law by failing to provide any eye-witness identification caution, providing an inadequate voice identification caution, failing to prohibit misuse of a prior consistent statement, and providing an insufficient instruction on the Crown’s burden of proof. The appellant also argues that the trial judge breached his duty to assist the appellant as a self-represented accused.
3Identity was the central issue in this trial involving significantly historical allegations. The appellant submitted, and his evidence was, that he did not attend the event following which the assault took place, had never been alone with the complainant, and did not commit the assault. While the complainant was certain that the voice she heard during the assault was that of the appellant, this was steadfastly denied. In the circumstances, as is detailed below, both an eye-witness caution and a complete and specific voice identification caution were required to be put to the jury. They were not.
4For the following reasons, I would allow the appeal.
Background
The complainant’s evidence
5The complainant alleged that in 1983, when she was 18 years old, she was sexually assaulted by the appellant following their attendance at a community dance in her townhouse complex, at which she said the appellant was the DJ.
6The complainant testified that she and the appellant knew one another from high school. They were a “couple of grades” apart but both members of the high school band. She said that they were not friends and not close. She testified that they chatted on the evening of the dance. The appellant told her he was a police officer, which impressed her. The appellant asked if she would like to have coffee after the dance, which she accepted. When the dance ended at about 11:00 pm, the complainant helped clean up while the appellant gathered his equipment. The complainant stated that they left the dance together to go for coffee.
7The complainant testified that she and the appellant started walking towards the parking lot, and then remembers nothing until she “came to” and was on her stomach being penetrated anally. She did not know where she was but thought she might be indoors as there was no wind. Her hands were tied. She did not know the state of her clothing. She stated that she did not see her assailant.
8The assailant spoke very few words during the assault. The complainant said he told her to “shush” and that if she just relaxed, she would enjoy it. She said that she passed out again and remembers nothing until the assailant then whispered into her ear that he was a cop, that he could find her anywhere, and that he would kill her if she ever told anyone about the assault.
9The complainant was unable to remember how the assault ended or how she got home. She woke up in the morning feeling pain in her anal area. She did not call police because she was afraid as the assailant had threatened to kill her. The complainant told her mother, who did not believe her. She felt lost.
10The complainant testified that she reported the assault in 2020 because she had had nightmares since the assault and because the MeToo movement inundated the news. She stated that she had to say something for her own sanity.
11The complainant testified that although she did not see the attacker, she was certain that it was the appellant who spoke to her during the assault, as she knew his voice and they had been speaking during the evening. She acknowledged that they had to speak loudly because of the music at the dance and probably couldn’t “hear too well,” but also said that they spoke after the dance. In response to the statement, “you believe that [the appellant] assaulted you because you heard his voice when it was happening?”, the complainant responded, “Yes. I left with him.”
12The complainant testified that she had only seen the appellant once since the assault, in approximately 2000, at a high school reunion. She denied having met him at the Pickering Town Centre some time after 1984, as stated by the appellant in his evidence.
13The complainant testified that she has had the “same memories from day one.” She was “absolutely” certain that the appellant was the DJ at the dance on the night she was assaulted.
The appellant’s evidence
14The appellant denied the allegations, stating that they were “completely false.” He said that while he was a part-time DJ in 1982 and 1983, he never played at the location where the sexual assault was alleged to have taken place and was not the DJ at the dance on the evening of the assault. While he allowed that the complainant could have attended a function at which he was a DJ, he was emphatic that he had never played at her townhouse complex and was never alone with her. The appellant stated and the Crown agreed that he was not a police officer at the time of the assault, becoming one only in 1989.
15The appellant testified that he knew the complainant in high school and that they “got along fine.” They were acquainted through the music program but were not friends, and they never had each other’s phone numbers. His evidence was that the only time he had seen the complainant since high school was sometime after 1984 when they ran into each other at the Pickering Town Centre and she told him about moving to a town with the same name as her last name. He said he remembered this because he had joked with her that “you guys are so important they named a village after you.” He was not asked about the high school reunion referred to by the complainant.
16The appellant was cross-examined about a statement he gave to the police when he was initially confronted with the complainant’s allegation. The appellant confirmed that he had told the police that it was “possible” that he had “gotten together” with the complainant, but that if he did, it was consensual. Asked how he could be certain at trial that he had never been alone with the complainant, the appellant responded that he had 15 months to think about the allegation, where it was that he played as a DJ and “what it was” that he did. He added that the complainant was never someone he dated or had a “crush” on.
Closing Submissions to the Jury
17The appellant’s closing submissions to the jury echoed his testimony, emphasizing his position that the complainant had mistakenly identified him. The appellant reaffirmed that he never played as a DJ where the assault was alleged to have taken place, and that he had never been alone with the complainant. He highlighted frailties in the complainant’s evidence, including not having seen her assailant, her inability to describe her assailant’s voice, and the inability to provide a timeline other than “after the winter of 1983”. The appellant emphasized that he was not a police officer when the assault was alleged to have taken place; and argued that he had explained the differences between his statement to police and his testimony at trial. The appellant summed up his submissions as follows: “I did not commit this sexual assault. I am not guilty.”
18The Crown’s submissions to the jury focused on the complainant’s candour and her “steadfast” description of what had happened to her. The Crown argued that the gaps in her memory did not shake the core of her evidence that she was sexually assaulted by the appellant. The Crown reminded the jury that the complainant said she left the dance with the appellant and walked through the parking lot with him. The Crown argued that she had “ample opportunity” to hear the appellant’s voice at the dance, such that she would recognize his voice during the assault. The Crown suggested that although the complainant did not see the assailant, the only “reasonable conclusion” was that the assailant was the appellant.
Issues on Appeal
19The appellant makes several arguments on appeal: that the trial judge erred in not providing an eye-witness identification warning; gave an inadequate voice identification warning; ought to have given a prior consistent statement caution; gave an inadequate instruction on the Crown’s burden; and provided inadequate assistance to him as a self-represented accused.
20As explained below, the trial judge erred by failing to provide an eye-witness identification caution and by providing an inadequate voice identification caution. In light of that conclusion, it is unnecessary to address the additional arguments raised by the appellant.
Jury Charge Generally
21An accused is entitled to a jury that is properly, not perfectly, instructed and this assessment is made on a functional basis: R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at paras. 20-21; R. v. Odesho, 2024 ONCA 9, at para. 23, leave to appeal requested, [2024] S.C.C.A. No. 63. The issue is whether the jury is properly equipped to decide the case. To perform their function as the trier of fact, juries must be equipped by the trial judge with an accurate understanding of the law, sufficient to decide the case. A jury that is misdirected, or not directed, is insufficiently instructed: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 35-37.
22Misdirection arises where the instruction provides an inaccurate understanding of the law or is so confusing as to amount to an error of law: Abdullahi, at paras. 38-39. Non-direction may arise where there is a failure to give an instruction, either with sufficient detail or at all. Both constitute errors of law: Abdullahi, at paras. 44-46.
Identification as the Central Issue in this Trial
23Identification was the central issue in this trial. The complainant was certain that she was assaulted by the appellant whom she knew from high school and spoke to at the dance; while the appellant was adamant that he was not at the dance and had never been alone with her. This raised questions about whether the appellant was, in fact, the man she said was the DJ at the dance and the man whose voice she said she recognized during the assault.
24While the appellant raises distinct issues regarding the need for both an eye-witness identification warning and a complete voice identification caution, in this case the issues are interrelated. There were significant frailties in the complainant’s evidence and discrepancies between the evidence of the complainant and the appellant on the issue of identity generally. The trial judge was required to carefully warn the jury, from the perspective of both eye-witness and voice identification evidence, about the risks of identification evidence generally and the many frailties in the evidence of identity in this case.
25However, the jury charge contained no eye-witness identification caution, and only a limited, general voice identification caution. This amounted to non-direction and misdirection. The jury was not provided with the legal tools required to accurately decide the case. This is discussed further, below.
Eye-Witness Identification
26The dangers of eye-witness identification are well established, as is the imperative to caution juries accordingly. This is because eye-witness identification evidence can be difficult to assess and triers of fact may place undue reliance on such testimony when compared to other types of evidence: R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, at para. 29. Trial judges “must convey to the jury the judicial experience that eye-witness evidence poses serious dangers”: R. v. Lewis, 2018 ONCA 351, at para. 18; R. v. Graham, 2023 ONCA 273, at para. 11.
27Where identity is an issue, the jury must be instructed to consider the frailties of eye-witness identification and to scrutinize the witness’ description of the assailant: R. v. Vassel, 2018 ONCA 721, 365 C.C.C. (3d) 45, at para. 184. Considerations include whether the suspect was known to the witness; the circumstances of contact during the offence; and whether the sighting was in circumstances of stress. Any distinctive characteristics of the suspect may be important: R. v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at paras. 12-17. The specific dangers arising on the evidence in the particular case must be highlighted for the jury: Lewis, at para. 18.
28Relatedly, the charge must caution the jury that an in-dock identification is to be given little, if any weight: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 47-53. As Laskin J.A. stated in R. v. Biddle, 2018 ONCA 520, 141 O.R. (3d) 401, at para. 32:
The dangers linked to eyewitness identification evidence increase exponentially when it comes to in-dock identifications. In these circumstances, the identification witness has a person presented to them, a person who the police obviously believe committed the offence. Given the suggestive nature of in-dock identifications, they are renowned for being of little to no value as reliable identification evidence. [Citations omitted].
29Recognition evidence, a subset of eye-witness evidence where the parties are known to one another, is subject to the same frailties and juries must be cautioned accordingly: M.B., at paras. 33-34; R. v. Chafe, 2019 ONCA 113, 145 O.R. (3d) 783, at paras. 30-32; R. v. Mohamed, 2023 ONCA 104, 423 C.C.C. (3d) 308, at para. 83; R. v. Gordon, 2022 ONCA 799, at para. 41, leave to appeal refused, [2023] S.C.C.A. No. 136. The jury may be “quick to assume that, because the witness knows the person, the identification must be correct”: Chafe, at para. 29. In Chafe, this Court confirmed, at paras. 29-30, that recognition evidence is not “different” from identification evidence and that the same level of assessment of the evidence must apply:
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. [Citations omitted.]
30Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters, 2015) provides detailed examples of the many considerations that may be put to the jury regarding eye-witness identification, in the context of a review of the specific evidence in the trial. These include, for example: the reliability of the witness’ memory; whether the witness knew the person before seeing them; how good the lighting was; how far apart the parties were; how long after the events the witness gave the first description; and whether the witness described any particular features of the accused.
31The trial judge did not address how the jury should consider the appellant’s denials that he was ever at the community centre at which the assault took place, that he had ever been alone with the complainant, and that he was the DJ the dance in question, in the face of the complainant’s evidence to the contrary. In light of the evidence, including that the parties “knew” each other and the appellant’s police statement, it appears to have been assumed early on that the appellant was, at a minimum, at the dance, even if he was not the assailant, and that eye-witness identification simply was not a live concern.
32The Crown’s opening statement referred to the appellant’s acknowledgement in his police statement that he had acted as a DJ at a dance held “on the south side of Bayly.” The appellant would subsequently testify that he acted as a DJ at a different community centre, also located south of Bayly Street, and that he never played at the complainant’s townhouse complex. In a discussion in the absence of the jury following that opening statement, the Crown indicated an intention to have the complainant identify the appellant in the courtroom.
33The trial judge then commented, having heard the Crown’s opening statement containing a summary regarding the police statement:
Identity is an issue, although it may not be as live an issue as you fear because of his statement that, obviously, we have discussed [referring to the statement to the police]. He will not challenge his voluntariness, okay. So the issue of identification may not be that critical because that statement alone puts him at the scene. … I am observing that that admission is implied in the statement that he provided to the police that he has agreed was voluntary… [Emphasis added].
34The trial judge then directly asked the appellant if identity was admitted. The appellant stated that it was not.
35The complainant identified the appellant during her examination-in-chief. She acknowledged in cross-examination that he looked very different, about 40 years older, but said she recognized him.
36At the pre-charge conference, the discussion of the issue of eye-witness identification instructions was limited to the extent to which voice identification evidence raises similar concerns to eye-witness identification evidence, and how Watt’s Manual model eye-witness identification instruction could be “gerrymander[ed]” to fit concerns about voice identification evidence. The trial judge stated that the model instructions should be tailored to the circumstances under which the complainant heard and recognized the assailant’s voice.
37There was no discussion in the pre-charge conference of any possibility that the complainant incorrectly identified the appellant as the DJ at the dance. Nor was there any discussion about the need to warn the jury regarding the lack of probative value of the in-dock identification, having been made almost 40 years after the assault, or the fact that the in-dock identification could at least as easily be based on their time in the high school band together as on the appellant having been the DJ at the dance. Indeed, the underlying assumption that the appellant was the DJ at the dance appeared to persist, with the main issue being whether the complainant correctly identified the assailant’s voice during the assault, not whether the appellant was there at all and could have been misidentified.
38As stated, the issue not having been discussed at the pre-charge conference other than with reference to voice identification, no eye-witness caution was included in the jury charge.
39The appellant’s position is that this omission constituted a legal error. He argues that the jury was left inadequately equipped to assess the general risks of eye-witness identification evidence and specific frailties in the complainant’s evidence.
40The Crown asserts on appeal that a specific eye-witness identification instruction was unnecessary. The Crown argues that this was neither a “true” eye-witness identification nor a recognition case because the complainant “knew” the appellant and they had spoken – per the complainant’s testimony – during the dance. Thus, the Crown asserts, the “typical markers of unreliability associated with eye-witness identification or recognition evidence were not present.”
41I disagree. An eye-witness identification caution was essential, given the appellant’s position that he had been misidentified and that he was not at the dance at all. As Chafe instructs, that the appellant and complainant “knew” each other is not an answer, given that the inherent dangers of recognition evidence mirror those of eye-witness identification more generally: Chafe, at para. 29.
42While, on the complainant’s evidence, she and the appellant spoke over the course of the dance and the basis of her recognition of him that evening was not fleeting, the apparent recognition ought to have been considered in the context of the circumstances of the dance, the conflicting evidence of the appellant, the almost 40 years since the assault allegedly took place, and the gaps in the complainant’s memory of many aspects of the evening: Chafe, at para. 30. In my view, the in-dock identification would have amplified the effect of this error.
43While the appellant’s counsel acknowledged that certain aspects of an eye-witness identification instruction may in fact have hurt the appellant’s case by highlighting strengths in the eye-witness identification evidence (such as reminding the jury that the appellant and complainant attended high school together and were in a band together), a clear warning regarding both strengths and specific frailties of this evidence was required.
44The jury should have been reminded, for example, that there was no evidence given of any distinctive characteristics of the appellant in 1983, no evidence about lighting, or the ability to see clearly at the dance, and that there were significant gaps in the complainant’s memory of that evening that could bear on whether she had correctly identified him or whether she may have been misremembering the evening given the lengthy passage of time: Jack, at para. 16; R. v. Virgo, 2016 ONCA 792, at para. 17; R. v. Nikolovski, 1996 SCC 158, [1996] 3 S.C.R. 1197, at para. 19. The jury should have been cautioned that the complainant’s certainty that the appellant was the DJ did not mean she could not have been mistaken.
45The failure to include an eye-witness identification caution in the jury charge was a non-direction amounting to an error of law.
Voice Identification
46Voice identification evidence is even more fraught with dangers than eye-witness identification and must be treated with extreme caution: R. v. Dodd, 2015 ONCA 286, 322 C.C.C. (3d) 429, at para. 79; R. v. Clouthier, 2012 ONCA 636, at para. 19; R. v. Quidley, 2008 ONCA 501, 232 C.C.C. (3d) 255, at para. 36. Where the Crown relies on voice identification evidence, the trial judge must give careful direction to the jury, warning of mistakes that can be made. Juries should be reminded that witness confidence in the voice identification does not substantially correlate to the accuracy of identification: R. v. Pinch, 2011 ONSC 5484, at para. 75; see also R. v. Masters, 2014 ONCA 556, 313 C.C.C. (3d) 275, at para. 47.
47The complainant’s evidence was that while she did not see the assailant, she recognized his voice during the attack and the voice was that of the appellant whom she knew from high school and with whom she had spoken throughout the evening. While the assailant spoke very few words, she simply “knew” it was the voice of the appellant based on their earlier interactions. She could not describe the voice in any way, testifying that it had “been too many years”.
48The appellant’s evidence was that he was not there, and by implication, that the voice she heard during the assault was not his.
49The trial judge was alive to the importance of a detailed voice identification caution that should be related to the evidence in the case. In the pre-trial conference, he discussed the need to adapt the model eye-witness caution to direct the jury to consider factors such as: evidence about the quality of the complainant’s hearing; the reliability of her testimony; whether the complainant had known the assailant prior to recognizing his voice; whether there was anything which hindered the complainant’s hearing; and how far apart the parties were physically. The trial judge noted the relevance of reminding the jury of the complainant’s inability to describe her assailant’s voice in any way. The trial judge stated, “I am going to incorporate some of these factors because I think they are relevant.” Regrettably, despite this discussion, most of those specific cautions were not included in the charge.
50The voice identification caution contained in the jury charge mirrored the general eye-witness identification caution from Watt’s Manual. The trial judge warned the jury that such evidence was to be approached cautiously; that innocent people have been wrongly convicted because of voice identification; that witnesses may make honest mistakes in identifying the person whom they hear speaking; and that reliance on such evidence has resulted in miscarriages of justice. The trial judge emphasized that it is possible to make a mistake in voice identification; that honest people make such mistakes; and that convincing witnesses can be mistaken. The trial judge also warned that there is little connection between the confidence of a witness and the correctness or accuracy of their identification.
51The charge did little, however, to relate the general caution to the specific evidence in the case. The trial judge reminded the jury that the complainant was in and out of consciousness during the sexual assault, and referred to earlier portions of his charge which highlighted the passage of time and the gaps in her memory. The trial judge did not relate the caution to other evidence in the trial.
52The appellant’s position is that the failure to caution the jury regarding specific frailties of the voice identification evidence in relation to the specific evidence in the case, was a misdirection amounting to an error of law. The appellant asserts that the error is amplified by the absence of the eye-witness caution.
53The respondent counters that the trial judge gave a strongly worded caution regarding reliance on voice identification evidence and that the jury had the tools it required to assess that evidence. The respondent argues that there was a strong foundation for the complainant’s identification of the appellant’s voice, including: that the parties knew each other from high school; that per the complainant, they spoke throughout the evening; that she stated that the appellant was the last person she saw before she lost consciousness; that the complainant remembered what the assailant said to her, including that he was a cop; and that her memories with respect to voice identification remained consistent over time. The respondent submits that any jury hearing the instructions would have understood that it had to proceed cautiously in its assessment of the voice identification evidence.
54While there are cases in which a voice identification caution has been held not to be required, this will be a case-by-case determination having regard to the balance of the evidence in the case: R. v. Deol, 2017 ONCA 221, 352 C.C.C. (3d) 343, at paras. 10-12; R. v. Badgerow, 2019 ONCA 374, 146 O.R. (3d) 35, paras. 54-62. In this case, where the complainant did not see the assailant and voice identification was the only source of identification, utmost caution, through the specific and detailed approach contemplated by the trial judge in the pre-trial conference, was required.
55Specifically, in addition to the general caution provided with respect to voice identification, the trial judge was required to draw a careful linkage between the challenges inherent in voice identification evidence generally and the specific evidence in this case: Pinch, at para. 76; R. v. Neverson, 2020 QCCS 253, at para. 171, aff’d, 2024 QCCA 519; R. v. Badgerow, 2008 ONCA 605, 237 C.C.C. (3d) 107, at para. 9, leave to appeal refused, [2008] S.C.C.A. No. 483. The jury ought to have been reminded, for example, that:
a) That there was no evidence of the quality of the complainant’s hearing in 1983 or of how far apart they were when the complainant says she and the appellant were speaking at the dance;
b) That on the complainant’s evidence, the assailant spoke very few words during the assault;
c) That among the few words spoken during the assault, the assailant said he was a cop, but it was undisputed that the appellant was not a police officer at the time of the offence;
d) That the complainant was unable, in any way, to describe the assailant’s voice. She could not speak to its pitch, character or whether her assailant had an accent. She simply stated that she “knew” it was him from speaking to him throughout the evening and from knowing each other in high school;
e) That the evidence was that the complainant and appellant were not friends and not close. It was therefore an open question whether they interacted enough that the complainant would be familiar with his voice after they had both left high school;
f) The evidence was that there was music playing at the dance and the complainant acknowledged that she “couldn’t hear too well”;
g) The complainant made the identification in fleeting moments of consciousness in a highly stressful context and testified that when she awoke, she did not feel fully alert or awake; and
h) That the complainant’s certainty that it was the appellant’s voice she heard did not mean that she could not be mistaken or that her identification of him was accurate.
56The voice identification caution in the jury charge was inadequate in the circumstances of this case and amounts to an error of law. This error, as with the failure to include an eye-witness identification caution, cannot be saved by considering the instructions as a whole, as the Crown argues.
Conclusion
57The respondent’s submissions on the application of the curative proviso, set out at s. 686(1)(b)(iii) of the Criminal Code, must be rejected. The legal errors identified above cannot be characterized as either harmless nor minor, as argued by the Crown, nor can it be said that the evidence was so overwhelming that the trier of fact would inevitably convict.
58The absence of any eye-witness caution combined with an incomplete voice identification caution, where the frailties in identification evidence were profound, result in a reasonable possibility that the verdict would have been different had the errors not been made. For these reasons, the curative proviso cannot apply: R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237, at para. 85; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34.
59As such, I would allow the appeal, set aside the conviction, and order a new trial. Consequently, it is not necessary to consider the application for leave to appeal sentence.
Released: July 17, 2024 “M.L.B.” “L. Madsen J.A.” “I agree. M.L. Benotto J.A.” “I agree. L. Favreau J.A.”
