COURT OF APPEAL FOR ONTARIO
Huscroft, Favreau and Monahan JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Charles Sturgeon
Appellant
Angela Ruffo and Rameez Sewani, for the appellant
Eunwoo Lee, for the respondent
Heard: June 16, 2025
On appeal from the convictions entered by Justice Mark Poland of the Ontario Court of Justice on August 5, 2021.
1In the early morning hours of February 15, 2020, the complainant, Nolan Darnell, followed his acquaintance Ashley Burggraeve into an apartment, expecting to receive her sexual services. Once inside the apartment, three men emerged with weapons. They attacked and seriously injured Mr. Darnell, and amongst the items stolen was a pair of distinctive Louis Vuitton sunglasses.
2The appellant was convicted of robbery, conspiracy to commit robbery, assault causing bodily harm, and disguise with intent to commit an indictable offence.1
3The key issue at trial was identity. Mr. Darnell recognized one of the attackers as the appellant because he had been a frequent guest at the hotel where Mr. Darnell worked for 12 years. The trial judge acknowledged some concerns with Mr. Darnell’s identification evidence but was ultimately satisfied that the appellant’s identity had been established based on Mr. Darnell’s recognition of the appellant along with evidence independently corroborating that identification.
4The appellant appeals his convictions, arguing that the trial judge misapprehended the corroborative evidence. Because the misapprehensions were essential to the trial judge’s reasoning, a miscarriage of justice occurred, and he should either be acquitted or granted a new trial.
5I agree that the trial judge misapprehended one element of the corroborative evidence. But even removing this misapprehension from consideration, Mr. Darnell’s recognition of the appellant continued to be independently corroborated by the fact that just two days after the robbery the appellant was found to be in possession of the stolen Louis Vuitton sunglasses. There was no plausible explanation for this fact other than that Mr. Darnell had correctly identified the appellant as a participant in the robbery. Accordingly, the trial judge’s misapprehension of the evidence did not leave Mr. Darnell’s identification evidence on unsteady ground, nor did it give rise to a miscarriage of justice. I would therefore dismiss the appeal.
Background
6As noted above, on February 15, 2020, Mr. Darnell went to his acquaintance Ms. Burggraeve’s apartment, having previously arranged to receive sexual services from her. Once inside he was attacked by three armed and masked assailants. At one point, one of the assailants lowered his bandana below his chin, revealing his entire face. This assailant then walked beside Mr. Darnell through a hallway and down some stairs, with Mr. Darnell continuing to have a full view of this assailant’s face. Mr. Darnell recognized the assailant as having been a regular guest at a hotel where he had worked.
7In the course of the robbery, Ms. Burggraeve took some items from Mr. Darnell’s car, including his white Louis Vuitton sunglasses with gold trim. The sunglasses had distinctive damage to a part that stuck out in the front.
8On February 17, 2020, Mr. Darnell gave a statement to the police in which he indicated that one of the assailants “looked familiar” and “reminds me of someone I’ve seen before”.2 Mr. Darnell said that he was “90 percent sure” that this assailant was the appellant, Charles Sturgeon, and he felt confident he could pick him out in a photo lineup.
9Later, Mr. Darnell looked up the appellant’s name on Facebook. After viewing the appellant’s photo, Mr. Darnell felt 100 percent sure that the assailant whose face he had seen was in fact the appellant.
10Also on February 17, 2022, the appellant happened to be arrested for impaired driving during a traffic stop. Officer Amy Bushell was assigned to transport the appellant to the police station. On her way to the scene of the appellant’s arrest, Officer Bushell heard over the police radio that there was a “driver and passenger in custody”. Once there, Officer Bushell took custody of the appellant, and one of the arresting officers handed her items of property which had been identified as belonging to the appellant. The items included a pair of white Louis Vuitton sunglasses. Officer Bushell transported these items along with the appellant to the police station.
11One of the Detective Constables at the police station, Stuart Gordon, had conducted the interview with Mr. Darnell and was thus aware that the appellant had been identified as a participant in the robbery of Mr. Darnell two days earlier. Detective Gordon also knew that the assailants had stolen a pair of white Louis Vuitton sunglasses. Detective Gordon examined the property that had been brought in by the officers who had arrested the appellant for impaired driving. He found a pair of white Louis Vuitton sunglasses, which he seized as evidence in the robbery investigation. It is not disputed that the sunglasses seized by Detective Gordon were the same glasses that had been stolen from Mr. Darnell two days earlier.
Trial Judgment
12Mr. Darnell was the main Crown witness at trial. The trial judge found him to be a “credible and reliable witness whose evidence is worthy of significant weight”.
13The trial judge addressed certain difficulties with Mr. Darnell’s evidence. This included the fact that after his police statement, Mr. Darnell had looked up the appellant’s Facebook profile to confirm his identification. The trial judge regarded Mr. Darnell’s use of Facebook in this manner as “problematic”. Accordingly, he ruled that the Facebook identification had no evidentiary value and concluded that it did not add credence to Mr. Darnell’s evidence.
14Having rejected the confirmatory value of looking up the appellant’s Facebook profile, the trial judge was left with Mr. Darnell’s evidence that he was 90 percent sure of the appellant’s identity at the time of his police statement. The trial judge expressed his concern that, “a certainty of 90 percent means that 1 in 10 times [Mr. Darnell] would point the finger of guilt at an innocent man.”
15However, the trial judge went on to find that, viewed in its proper context, Mr. Darnell’s identification of the appellant went far beyond this evidence regarding his level of certainty.
16One important contextual consideration was that Mr. Darnell was identifying someone he knew, rather than a stranger. Mr. Darnell had interacted with the appellant numerous times while the latter had been a guest at the hotel where Mr. Darnell had worked. Mr. Darnell remembered the appellant’s name based on the fact that he had seen his photo identification, and he specifically recalled an incident where the appellant’s brother had gotten into an altercation with his boss at the hotel.
17The trial judge said that, “more critically”, Mr. Darnell’s identification evidence was independently corroborated in two ways.
18The first was the fact that Mr. Darnell had identified a distinctive set of Louis Vuitton sunglasses that had been stolen during the robbery. When Mr. Sturgeon was arrested two days after the robbery he was found to be in possession of those same sunglasses. While noting that “some frankly rather sloppy note-taking” left the police unable to definitively indicate where or how the sunglasses were found in the appellant’s possession, the trial judge accepted that the sunglasses nonetheless “were either on his person or close enough nearby him to result in the glasses ultimately being placed in the bag of Mr. Sturgeon’s property that was gathered upon his arrest.”
19In the trial judge’s view, this was significant since Mr. Darnell could not have known that the appellant would coincidentally be found in possession of these particular sunglasses on the very day he was giving his statement to the police where he identified the appellant as a perpetrator.
20The trial judge further found that Mr. Darnell’s identification evidence was corroborated by the fact that, at the time of his arrest, the appellant was in the company of Ms. Burggraeve, a known co-conspirator in the robbery. The trial judge observed that Mr. Darnell would have had no way of knowing that the appellant and Ms. Burggraeve were associated with each other independent of their co-involvement in the robbery, or that they were going to be found together only a short time after the robbery.
21Accordingly, the trial judge found the appellant guilty of various offences relating to the robbery.
Grounds of Appeal
22The appellant argues that the trial judge misapprehended the evidence corroborating Mr. Darnell’s identification evidence because: (i) there was no evidence that the white Louis Vuitton sunglasses were in the appellant’s possession; and (ii) there was no evidence that the appellant was arrested in the presence of Ms. Burggraeve.
23He further argues that these misapprehensions were essential to the trial judge’s reasons. When these misapprehensions are removed from consideration, the only remaining basis for identifying the appellant as having been involved in the robbery is Mr. Darnell’s recognition evidence, which the trial judge found insufficient to support a conviction. Accordingly, the appellant submits that these misapprehensions render the verdict unreasonable and he is entitled to an acquittal. Alternatively, he submits that the misapprehensions resulted in a miscarriage of justice, and that he is entitled to a new trial. The appellant also submits that even if there was no misapprehension of evidence, the verdict was unreasonable because of the significant facilities in Mr. Darnell’s evidence.
Analysis
(1) Principles governing misapprehension of evidence
24The test for appellate intervention on the basis of a misapprehension of evidence is stringent. Appellate intervention is only warranted where: (i) the misapprehension goes to the substance of the evidence and not just a peripheral detail; (ii) the misapprehension is material to the trial judge’s reasoning; and (iii) striking the misapprehension leaves the verdict on unsteady ground or would otherwise result in a miscarriage of justice: R. v. B.W., 2024 ONCA 412, 438 C.C.C. (3d) 241, at para. 56; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; and R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at para. 83. By contrast, if other evidence would inevitably have led the trial judge to the same conclusion, then there is no miscarriage of justice: R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 28, 35; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 56-57.
(2) The trial judge did not misapprehend the evidence regarding the appellant’s possession of the Louis Vuitton sunglasses
25The appellant argues that there was no evidence supporting the trial judge’s finding that the appellant was in possession of the white Louis Vuitton sunglasses at the time of his initial roadside arrest. He argues that the officers who testified regarding the appellant’s arrest did not themselves find the sunglasses, nor were they able to explain the basis upon which the sunglasses were identified as the appellant’s property. He therefore argues that the trial judge erred in finding that the appellant was in possession of the sunglasses.
26I do not agree.
27At the time of his initial arrest, the appellant was not yet identified as having taken part in the robbery and thus there was no reason to believe that the white Louis Vuitton sunglasses had any evidentiary value. Detective Gordon explained that apart from items with evidentiary value, police would only take loose items or personal accessories that the arrested person might be wearing or had asked to be taken with them so they would not be lost. Therefore, despite the absence of any direct evidence on the issue, it was open to the trial judge to infer from the surrounding circumstances that the appellant was in possession of the sunglasses at the time of his initial arrest.
(3) The trial judge erred in finding that Ms. Burggraeve was in the motor vehicle at the time of the appellant’s initial arrest
28The appellant argues that there was no evidence in support of defence counsel’s suggestion in closing submissions that Ms. Burggraeve was a passenger in the appellant’s motor vehicle car at the time of his roadside arrest. Therefore, the trial judge erred in relying on Ms. Burggraeve’s presence in the motor vehicle as additional corroboration of Mr. Darnell’s identification of the appellant.
29I agree with the appellant that there was no evidence as to the identity of the passenger in the appellant’s motor vehicle. The suggestion that Ms. Burggraeve was a passenger in the appellant’s motor vehicle only arose in defence counsel’s closing submissions, where he argued that it was possible that Ms. Burggraeve rather than the appellant was in possession of the sunglasses:
I think it was in the evidence as well that both he [the appellant] and Ms. Burggraeve were arrested in the – from the same vehicle on that day… and whether or not those glasses were actually in his possession is one bone of contention from the defence perspective.
30Even assuming that defence counsel had some independent basis for making this statement, and that Ms. Burggraeve may in fact have been in the motor vehicle at the time, there was no such evidence in the record. Thus, defence counsel’s statement that there was evidence to this effect was mistaken.
31The Crown argues that it was undisputed that Ms. Burggraeve was in the motor vehicle at the time of the appellant’s roadside arrest and thus it was open to the trial judge to treat the defence submission as an informal admission: see R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at paras. 32, 75; R. v. Stennett, 2021 ONCA 258, 408 C.C.C. (3d) 141, at para. 57; and R. v. Korski (C.T.), 2009 MBCA 37, 244 C.C.C. (3d) 452, at paras. 123-24. Informal admissions include statements of what a witness can or will say if they were called to testify. The Crown argues that since defence counsel was in effect admitting that Ms. Burggraeve was a passenger in the appellant’s motor vehicle, the trial judge cannot be faulted for focusing on the inferences that could be drawn from this undisputed fact.
32I do not agree. The statement by defence counsel in this case was not an admission about facts, whether disputed or otherwise, but about the evidence that had already been adduced at trial. Defence counsel was mistakenly asserting that it was already “in the evidence” that Ms. Burggraeve was in the appellant’s motor vehicle when in fact there was no such evidence in the record.
33This is not an admission of fact that formed part of the evidence once mentioned by defence counsel. It is a mistake about what was already in evidence. The trial judge relied on this mistake and therefore misapprehended the evidence with respect to the passenger in the appellant’s vehicle during the roadside arrest, and erred in relying on Ms. Burggraeve being the passenger as a basis to corroborate Mr. Darnell’s identification of the appellant.
(4) The trial judge’s misapprehension did not result in an unreasonable verdict or a miscarriage of justice
34Given that the trial judge misapprehended the evidence regarding Ms. Burggraeve’s presence in the motor vehicle, the question is whether this misapprehension calls into question the trial judge’s finding that Mr. Darnell’s identification of the appellant was reliable.
35The dangers of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification are notorious: see R. v. Layne, 2024 ONCA 435, 439 C.C.C. (3d) 112, at paras. 23-24. Trial judges are required to guard against these dangers by closely scrutinizing the reliability of the witness’s description of the perpetrator and that description’s similarities and dissimilarities with the accused. They must assess the identification evidence against other potentially exculpatory evidence: R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at paras. 37, 42-44. Trial judges should also evaluate the evidence in light of the four factors derived from this court’s decision in R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 (C.A.), at p. 673, namely:
(i) whether the person identified was a stranger or known to the witness since, if the witness recognizes the perpetrator as someone he or she knows, that makes the identification more reliable than trying to remember a stranger;
(ii) whether the circumstances of the identification were conducive to an accurate identification;
(iii) whether the pre-trial identification process was flawed; and
(iv) whether there was independent evidence confirming the identification. This fourth factor, independent confirmatory evidence, “can go a long way to minimizing the dangers inherent in eyewitness identification”: R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 75 O.R. (2d) 463 (C.A.), at p. 471.
36The trial judge’s approach to the reliability of Mr. Darnell’s identification evidence was informed by the need for caution in relying upon such evidence. The trial judge began his consideration of the identification evidence by observing that eyewitness identification evidence is inherently unreliable:
When one assesses the element of identity, great care must be exercised. The law has now recognized for some time that even honest and sincere witnesses make mistakes in this area. Mistakes concerning the identity of the accused as a perpetrator led to wrongful convictions. Eyewitness identification evidence is inherently unreliable and can pose a serious risk of causing a miscarriage of justice.
37It was precisely because of the dangers associated with identification evidence that the trial judge found that Mr. Darnell’s initial “90 percent certainty” with respect to the appellant’s identity was insufficient to support a conviction.
38However, the trial judge went on to point out that Mr. Darnell was identifying a person he already knew as opposed to a stranger. Moreover, Mr. Darnell identified the appellant by name, and did so without prompting or suggestion by the police. As such, the identification evidence was not tainted by any of the procedural irregularities which have often led to identification evidence being found to be unreliable, such as where the police have improperly prompted the witness or attempted to point the witness in the direction of a particular suspect.
39Moreover, even assuming that Ms. Burggraeve was not the passenger in the appellant’s vehicle, the independent corroborative value derived from the appellant’s possession of the stolen Louis Vuitton sunglasses remains undiminished. As the trial judge recognized, it is simply not believable that the very individual identified by Mr. Darnell as having participated in the robbery would be found in possession of property stolen in that robbery just two days later unless the person had in fact participated in the robbery.
40Not only is the corroborative value of the sunglasses undiminished – it is strengthened. If Ms. Burggraeve was in fact a passenger in the car at the time of Mr. Sturgeon’s arrest, this may have provided an innocent explanation for the presence of the sunglasses in the car since the sunglasses may have belonged to Ms. Burggraeve, who was also involved in the robbery, and not Mr. Sturgeon. In this way, the trial judge’s misapprehension that Ms. Burggraeve was in the car at the time of Mr. Sturgeon’s arrest is both inculpatory and exculpatory: Ms. Burggraeve links Mr. Sturgeon to the robbery, since she was present at the robbery, but (as defence counsel argued) she also provides an innocent explanation for the presence of the sunglasses in the car. Therefore, if her presence in the car at the time of the arrest is taken out of the equation, the result is both helpful and harmful to the Crown’s case. On the unique facts of this case, the misapprehension of evidence removes one piece of corroborating evidence, but it significantly strengthens the corroborative value of the other.
41Further, this is not a case where there is contrary evidence casting doubt on Mr. Darnell’s identification of the appellant, such as where the witness described physical characteristics that were inconsistent with the perpetrator’s (Olliffe, at paras. 42, 45; Chartier v. Quebec (Attorney General), 1979 CanLII 17 (SCC), [1979] 2 S.C.R. 474, at pp. 489-490), or where there were other witnesses whose evidence contradicted that of the identification witness (Chartier, at p. 490).
42Finally, I note that the Crown did not rely upon the presence of Ms. Burggraeve in the appellant’s vehicle as independent corroborative evidence of the appellant’s identity. Nor did the trial judge’s misapprehension arise from any procedural irregularity or unfairness to the appellant. Rather, the trial judge’s misapprehension arose solely as a result of defence counsel’s mistaken description of the evidence at trial.
43The circumstances here are analogous to those in Sinclair. In that case, the accused had been convicted of manslaughter. The court of appeal overturned his conviction on the basis that the trial judge mistook the Crown theory concerning a planned second robbery as evidence. The Supreme Court restored the conviction. Lebel J., writing for a majority, concluded that even if the trial judge did misapprehend the evidence with respect to a planned second robbery, the error was not materially linked to her conclusion that Mr. Sinclair was present at the crime scene: at para. 56. Lebel J. concluded that “[i]n light of the circumstantial evidence the trial judge accepted, it cannot seriously be doubted that she would nonetheless have found that Mr. Sinclair was at the crime scene at the time of the assault”: at para. 57. This is because there was other cogent evidence linking Mr. Sinclair to the crime scene, which was not tainted by the misapprehension: at paras. 60-61.
44I reach the same conclusion here. The fact that the appellant was in possession of sunglasses that had been stolen in the robbery more cogently corroborates Mr. Darnell’s identification of the appellant as a participant in the robbery, than does the fact that Ms. Burggraeve may have been with him at time of his arrest. Further, if Ms. Burggraeve was not in fact in the car at the time of Mr. Sturgeon’s arrest, the corroborative value of the sunglasses becomes even stronger.
45Thus, having regard to the evidence as a whole, I am not persuaded that the appellant has met his onus of demonstrating the materiality of the misapprehension, such that the trial judge’s assessment of the reliability of Mr. Darnell’s identification evidence would have been any different even if he had not accepted defence counsel’s erroneous suggestion that Ms. Burggraeve was in the vehicle at the time of the appellant’s arrest. In my view the trial judge would “inevitably have come to the same conclusion without the misapprehended evidence”: Alboukhari, at para. 28, citing Sinclair at paras. 56-57.
46I therefore conclude that the misapprehension of evidence does not result in an unreasonable verdict. Nor does it leave the verdict on unsteady ground or result in a miscarriage of justice. Given my finding that there was a misapprehension of the evidence, and my conclusion that the verdict is sound notwithstanding that misapprehension, it is unnecessary to address the appellant’s final argument that the verdict was unreasonable even if there was no misapprehension of evidence.
Disposition
47For the above reasons I would dismiss the conviction appeal. I note that the appellant’s sentence appeal was previously abandoned, and I would therefore dismiss the sentence appeal as abandoned.
Released: August 1, 2025 “G.H.”
“P.J. Monahan J.A.”
“I agree. Grant Huscroft J.A.”
“I agree. L. Favreau J.A.”
Footnotes
- The appellant was acquitted of a number of firearm-related offences with which he had been charged.
- Mr. Darnell had provided an initial statement to the police a few hours after the robbery in the presence of his father. He admitted at trial that he gave a false version of events in this initial statement, since he did not want to admit he had paid for sexual services in front of his father. Mr. Darnell’s account of the robbery that he provided on February 17, 2020 was corroborated by surveillance video taken outside of the apartment where he planned to visit Ms. Burggreave.