R. v. Philion, 2008 ONCA 329

CITATION: R. v. Philion, 2008 ONCA 329

DATE: 20080429

DOCKET: C45176, C45177, C45799

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., FELDMAN and ROULEAU JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN (C45176)

Respondent

And

PAUL PHILION

Appellant

HER MAJESTY THE QUEEN (C45177)

Respondent

And

GUY LAFLEUR

Appellant

HER MAJESTY THE QUEEN (C45799)

Respondent

and

MATHIEU LAFLEUR

Appellant

Terry P. Waltenbury for the appellant Paul Philion

David B. Cousins for the appellant Guy Lafleur

Scott D. Bergman for the appellant Mathieu Lafleur

Daniel Guttman for the respondent

Heard and released orally: April 9, 2008

On appeal from conviction by Justice Frank Caputo of the Superior Court of Justice, sitting with a jury, dated October 5, 2005. The appellant Guy Lafleur appeals from sentence imposed dated January 27, 2006.

ENDORSEMENT

[1] The appellants raise a number of issues respecting the trial judge’s charge to the jury in this case.

[2] The first is that the trial judge erred in failing to warn the jury of the risk to accurate identification from the fact that the investigating officer may have shown photographs of the appellants to the key identification witness, Mr. Pitre, before taking his statement.

[3] While there may be legitimate concerns in this case regarding the process used by the officer of showing photographs to Mr. Pitre while taking his initial statement, this issue was not raised by defence counsel in their jury addresses at trial. It is significant in evaluating the seriousness of the concern in this case, that the witness Mr. Pitre knew the appellants and testified that he recognized them on the night of the assault. This was therefore a recognition case and not a case where the witness had to identify a stranger by description. In any event, the trial judge identified the issue and highlighted the evidence to the jury in the context of his charge on identification. Finally, defence counsel made no objection to the charge on this issue.

[4] Second, the appellant Philion argued that the trial judge erred by failing to give a warning regarding the unreliability of in-dock identification. Again, as this was principally a recognition case on the part of Mr. Pitre, the in-dock identification component played a limited role. In respect to the witness Mr. Duré, the trial judge did explain the limited value of his identification of the appellants in-dock after being shown their photographs. We are satisfied that the trial judge’s instructions were wholly adequate to bring home to the jury the frailties of the witness’s ability to identify the appellants after having been through the investigation and preliminary inquiry procedures.

[5] Third, the appellant Philion argued that the trial judge should have given a Chartier warning because Mr. Pitre described Mr. Philion as having a tattoo when he did not have one at the trial. In our view, a Chartier warning was not warranted in this case. First, Mr. Pitre was not the only witness who identified Mr. Philion. Second, as Mr. Pitre recognized Mr. Philion at the assault, his misdescription was a factor for the jury to consider in weighing the identification evidence but did not rise to the level of a Chartier misdescription issue. Again, in any event, the trial judge highlighted the tattoo discrepancies in Mr. Pitre’s evidence in detail in his jury charge.

[6] Fourth, the appellant Mathieu Lafleur argues that the trial judge erred in not providing the jury with a Vetrovec warning with respect to Mr. Pitre because of the many inconsistencies in his evidence. Again, a Vetrovec warning was not requested by defence counsel. Also the trial judge spent six pages in his charge outlining the frailties in Mr. Pitre’s evidence and brought home to the jury the concerns about the witness’s reliability and credibility.

[7] Fifth, the appellant Guy Lafleur argued that the trial judge erred by mentioning on two occasions that he had gone to school with Mr. Pitre. While this was a factual error, subsequently, the trial judge made it clear that Mr. Pitre had only met Guy Lafleur either once or three times. We are satisfied that it was clear to the jury that Mr. Pitre had only limited previous contact with Guy Lafleur. We note that there was no objection to the charge on this issue.

[8] Sixth, each of the appellants argues that the verdicts were unreasonable. We do not accept these arguments. There was direct evidence of eye-witness identification by Mr. Pitre who knew the appellants. Moreover, none of them testified.

[9] In summary, it is our view that the trial judge gave a well-crafted and balanced charge that highlighted to the jury the issues for them to decide, the main one being identification and the frailties of the evidence on that issue. We would therefore not give effect to any of the grounds of appeal raised and would dismiss the appeals on conviction.

[10] The appellant Guy Lafleur also appeals his sentence of three years in prison. We see no error in principle in the sentence that was imposed. He was not a first offender, but has a significant record, including three convictions for assault. We believe that the sentence imposed is within the range. We would therefore grant leave to appeal sentence, but dismiss the appeal.

Signed: “D. O’Connor A.C.J.O.”

“K. Feldman J.A.”

“Paul Rouleau J.A.”