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(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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; and

(b) on application of the victim or the prosecutor, make the order.

(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.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(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. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

DATE: 20211210 DOCKET: C65063

Hoy, Benotto and Sossin JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Dylan Hird Appellant

Counsel: Janani Shanmuganathan and Owen Goddard, for the appellant Jeremy D. Tatum, for the respondent

Heard: November 17, 2021

On appeal from the conviction entered on September 28, 2017, and the sentence imposed on February 20, 2018, with reasons reported at 2018 ONSC 1152, by Justice Ian F. Leach of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1] After an 11-day trial, the appellant, along with two other co-accused, was convicted of various offences related to the trafficking and sexual assault of a 15-year-old complainant. The appellant was sentenced to nine years in custody, along with a DNA order under ss. 487.04 and 487.051(1) of the Criminal Code, an order under s. 490.013(2.1) of the Code to comply with the Sex Offender Information Registration Act for life, restrictions on his internet use pursuant to s. 161 of the Code, as well as prohibitions against possessing weapons and contacting the complainant.

[2] The complainant testified that one of the people involved in her trafficking and who assaulted and sexually assaulted her was an individual with the street name “Taffa”. The complainant eventually identified the appellant as Taffa.

[3] The appellant appeals on the ground that the trial judge erred in his charge to the jury with respect to identification evidence and how he dealt with the evidence regarding the police’s failure to conduct a photo line-up.

[4] For the reasons that follow, we dismiss the appeal.

BACKGROUND

[5] The facts of the crimes are not in dispute.

[6] The appellant does not challenge that the complainant was 15 at the material time, or the jury findings about how she was deceptively recruited, exploited, and then abused for days before escaping from the hotel room where the offences occurred.

[7] The appellant, in particular, does not dispute the role played by the person referred to by the complainant as “Taffa” in the ordeal. The complainant alleged that Taffa physically blocked the door when the complainant sought to leave the hotel room, threatened her, assaulted her, and sexually assaulted her on several occasions. The complainant eventually managed to escape the hotel and contact police.

[8] She identified the profile picture of a person named “Stay Humble” as Taffa in a printed list of a co-accused’s Facebook friends. Eventually, with the assistance of further identification evidence from the complainant, the police linked Taffa to the appellant.

[9] Almost six months after the offence, the appellant was arrested and charged with various offences relating to the complainant’s confinement, assault, sexual assault and trafficking.

ANALYSIS

[10] While the appellant’s Notice of Appeal raises issues with respect to both the conviction and sentence, counsel for the appellant clarified that the appellant now limits his appeal to the trial judge’s charge to the jury on identification evidence and the trial judge’s treatment of the evidence of the police’s failure to conduct a photo line-up.

Did the Trial Judge’s err in his charge to the jury on the identification evidence?

[11] The review of a trial judge’s charge is a functional exercise. As this court stated in R. v. Badgerow, 2019 ONCA 374, 146 O.R. (3d) 35, at para. 17:

Appellate review of the adequacy of a jury instruction requires a functional assessment. The court asks whether the charge, read as a whole in the context of the specific case, properly equipped the jury to decide the case based on the application of the applicable legal principles to the evidence. [Citations omitted.]

[12] In his charge, the trial judge described the threshold for identification as follows:

For any particular accused to be found guilty of an offence, Crown Counsel must prove beyond a reasonable doubt that the “someone” in question – that is, the person who engaged in certain conduct said to constitute an offence charged against that particular accused – was, in fact, the particular accused who is charged with the offence.

[13] The appellant argues that the trial judge erred in instructing the jury by conflating the two steps required in the identification process: first, it had to be established that Taffa was indeed the person involved in the alleged crimes, and second, that the appellant was Taffa. The appellant takes no issue with the jury’s finding with respect to the first step. However, the appellant argues that the trial judge failed to clarify for the jury what had to be proven beyond a reasonable doubt at the second step.

[14] According to the Crown, the jury drew inferences that were available to it from the record, including that the appellant’s phone number was the same as Taffa’s, and that the appellant conceded that an image of Taffa, captured in a still-shot from a music video, appeared to be an image of him.

[15] We do not accept the submission that the trial judge failed to instruct the jury on the importance of considering not simply the identification of Taffa as the alleged assailant but also that the appellant was Taffa. The trial judge made it clear that the identification of the appellant as Taffa had to be established beyond a reasonable doubt.

[16] The jury was repeatedly cautioned about general and specific frailties related to the identification evidence. For example, the trial judge explained:

You must be very cautious about relying on eyewitness testimony to find a particular accused guilty of any criminal offence charged. In the past, there have been miscarriages of justice, and innocent persons have been wrongfully convicted, because eyewitnesses have made honest mistakes in identifying the person or persons whom they saw committing a crime or crimes. 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 whom he or she saw committing an offence in question.

[17] In his charge, the trial judge reviewed the identification evidence in relation to all the accused, but focused on the appellant. He stated, “[c]learly, I think, the most significant identity issues in this case relate to whether the perpetrator known and described principally as ‘Taffa’ was, in fact, the accused Mr. Hird.”

[18] This identification evidence consisted primarily of the complainant’s testimony. In his charge, the trial judge reviewed her testimony in detail, including her inconsistencies and memory lapses. He also reviewed the frailties with her evidence raised by the appellant at trial, namely that the complainant consumed drugs, including methamphetamine, during the period of the alleged crimes.

[19] The complainant’s identification evidence was corroborated by other evidence. For example, the appellant’s phone number and the image of him in the music video.

[20] Additionally, the draft jury charge was shared with defence counsel. Defence counsel did not object to the charge in relation to the identification evidence, aside from the issue of the police line-up, addressed below. While not determinative, the failure of the defence to object to the charge when they had an opportunity is relevant in assessing the adequacy of the jury charge: R. v. Bailey, 2016 ONCA 516, 339 C.C.C. (3d) 643, at para. 56.

[21] Finally, the appellant argues that the trial judge should have raised the difficulties of cross-racial identification in his charge to the jury. There was no suggestion in this case that the complainant had any difficulty identifying the appellant as a result of race. Further, there is nothing in the record on the demographic make-up of the jury that would raise this as an issue. Absent specific evidence of cross-racial identification concerns, there is no basis as a general matter to conclude the jury would need to be instructed on the issue of cross-racial identification.

[22] We find no error with respect to the trial judge’s charge on identification.

Did the trial judge err in how he dealt with the evidence regarding the police’s failure to conduct a photo line-up?

[23] Defence counsel wished to cross examine a police witness on the police’s failure to conduct a photo line-up containing a known image of the appellant.

[24] The police witness stated that a photo line-up was not used because the police had no doubt that the appellant was the individual identified by the complainant as Taffa.

[25] The basis for the police witness’ confidence in the identification of the appellant was a statement made to the police by the appellant after his arrest. This statement was subsequently ruled inadmissible by the trial judge after a voir dire on voluntariness.

[26] As the Crown could not rely on the appellant’s statement, the trial judge accepted the Crown’s submission that it would be unfair to permit defence counsel to cross-examine the police witness on this point. Allowing the line of questioning could have undermined the integrity of the investigation even though police had grounds to conclude the investigation at that time.

[27] There was significant discussion of this point between counsel and the trial judge. In the end, the trial judge permitted defence counsel to cross-examine the police witness on why the police had not conducted a photo line-up prior to the appellant’s arrest, but not with respect to the period after the statement by the appellant.

[28] The trial judge provided a mid-trial jury instruction on this issue. He instructed the jury:

[T]o proceed on the basis that the police had reasons at the time for not employing the police photo lineup procedure, but you are not permitted to hear those reasons, speculate as to what those reasons were, or in turn, speculate as to whether those unknown reasons for not using that procedure after Mr. Hird’s arrest were sufficient or not.

[29] In the end, defence counsel did not continue to cross-examine the police witness on this point.

[30] In our view, the trial judge committed no error in relation to the photo line-up. He addressed this issue with fairness to the Crown and the defence in mind.

DISPOSITION

[31] There was no error by the trial judge in his charge to the jury with respect to the identification evidence or in how he dealt with the evidence regarding the photo line-up. Accordingly, the appeal is dismissed.

“Alexandra Hoy J.A.”

“M.L. Benotto J.A.”

“L. Sossin J.A.”