WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
CITATION: R. v. T.L., 2008 ONCA 763
DATE: 20081114
DOCKET: C46544
COURT OF APPEAL FOR ONTARIO
Doherty, Feldman and MacFarland JJ.A.
BETWEEN:
Her Majesty The Queen
Respondent
and
T.L.
Appellant
Craig Bottomley, for the appellant
Elliot Behar, for the respondent
Heard and released orally: October 27, 2008
On appeal from the conviction entered on April 18, 2006 by Justice John R. Sproat of the Superior Court of Justice.
ENDORSEMENT
[1] The appellant was convicted of three robberies committed over a roughly four month span in 2002. Identity was the sole issue at trial. The case for the crown rested almost entirely on the evidence of two accomplices. One participated in the second robbery and the other participated in the third robbery. Both gave evidence that the appellant had told them about the earlier robbery. There was some evidence capable of providing confirmation of the accomplices’ testimony. That evidence, while significant, was not overwhelming. It was also open to the jury to conclude that there was no possibility of collusion between the two accomplices.
[2] The accused appellant advanced a two pronged defence. First, he and his brother testified and denied that the accused had any involvement in the robberies. They offered some explanation for the potentially inculpatory evidence. There were obvious difficulties with the believability of the evidence of both witnesses.
[3] The second prong of the defence arose out of the identification evidence given by the victims of the robbery, particularly the victims of the first and second robbery. Their descriptions of the robber if accurate, excluded the possibility that the appellant was the robber. Four different witnesses identified the robber in the first two robberies as a black male. The appellant is white. The same witnesses also described the robber’s height as somewhere between “slightly over 5’2” and 5’ 10”. The appellant was over 6’ tall.
[4] The crown did not rely on the identification evidence. The crown made it clear to the jury that it could not possibly ask them to convict based on the identification evidence. The defence took the position that the identification was accurate and excluded the possibility that the appellant was the robber.
[5] The trial judge properly instructed the jury on the principle of reasonable doubt in general. He also on two occasions gave a proper “W.D.” instruction as it related to the evidence of the appellant. The trial judge did not give an instruction like that given in R. v. Jack (1992), 1992 MB CA, 70 C.C.C. (3d) 67 at 108 (Man. C.A.). That instruction, given in a case where there was exculpatory identification evidence, effectively applies the “W.D.” instruction to the exculpatory identification evidence. We think that kind of instruction was necessary here.
[6] We do not say that an instruction like that given in Jack is essential whenever there is identification evidence that is potentially exculpatory. We are however satisfied that in the circumstances of this case it was essential. The potentially exculpatory identification evidence came from four different witnesses and related to two of the three robberies. The discrepancies between the description of the robber and the appellant’s actual appearance were not only significant, they related to obvious and readily discernable characteristics, especially skin colour. It is hard to see how the evidence of four independent witnesses identifying the robber as black could not create a doubt where the accused was white. We also note that roughly the same descriptions were given by four different people who were involved in two different events. This fact also suggests to us that the potential for reasonable doubt based on the exculpatory identification evidence was high in this case.
[7] The trial judge in dealing with the defence position did not allude to the possibility that the jury could have a reasonable doubt based on the exculpatory evidence, even if they did not accept the exculpatory identification evidence as accurate. The trial judge, in summarizing the position of the defence, left it solely on the basis that the jury should accept that identification evidence as accurate. This is the way it was put to the jury by defence counsel. However, we think the trial judge should have made it clear to the jury that it was required to acquit even if it didn’t believe the exculpatory identification evidence as long as that evidence left the jury with a reasonable doubt. He could have made that point in his “W.D.” instruction or in his review of the position of the defence.
[8] In summary we think the trial judge’s instruction failed to relate the meaning and application of the reasonable doubt doctrine to the exculpatory identification evidence. That evidence was a crucial part of the defence.
[9] The conviction is quashed and a new trial is ordered on all counts.
“Doherty J.A.”
“K. Feldman J.A.”
“J. MacFarland J.A.”