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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, 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).

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

CITATION: R. v. Charbonneau, 2012 ONCA 314

DATE: 20120514

DOCKET: C49981

Weiler, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marc Charbonneau

Appellant

Brian Snell, for the appellant

Eric Siebenmorgen, for the respondent

Heard: April 17, 2012

On appeal from the conviction entered by Justice Catherine D. Aitken of the Superior Court of Justice, sitting with a jury, on February 3, 2006.

By the Court:

1. Introduction

[1] Following a jury trial before Aitken J., the appellant was convicted of sexual assault. The only evidence at trial directly implicating the appellant in the sexual assault was the testimony of the complainant. The main issue at trial was identification.

[2] On appeal, the appellant argues that the trial judge erred in her instructions to the jury concerning eyewitness identification evidence. In addition, he submits that the trial judge erred in ruling that, in the event the appellant elected to testify, he would be subject to cross-examination on his criminal record.[^1]

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

2. Background

[4] The complainant was 49 years old at the time of the assault. She suffers from paranoid schizophrenia. She reported the alleged assault to the police approximately three weeks after she says it occurred. Her videotaped statement to the police was admitted as evidence at the trial, on consent, under s. 715.2 of the Criminal Code. The complainant also gave oral evidence.

[5] The complainant said she met her assailant on two occasions before the assault occurred: once, at his apartment, for coffee; and on a second occasion, briefly, at her apartment. She said she accompanied the appellant to his apartment on the day of the assault after running into him at a mall. She described his apartment as being in the basement of a red brick house near the mall.

[6] About a week after the assault, the complainant once again saw her assailant at the mall. She wrote down the licence number of the white van he was driving as 933 1K7.

[7] Police subsequently arrested the appellant, who lived in a basement apartment of a red brick house. The license number of his white van was 933 1KE. A sketch of the lay-out of his apartment prepared by one of the arresting officers closely matched a sketch prepared by the complainant during her interview with the police. And whereas the complainant had described the appellant’s bed as having a brown comforter with a big tiger on it, police found a blue comforter with a big picture of a wolf on it.

[8] In her videotaped statement to the police, the complainant described her attacker as follows:

• dirty, dark, “stable brown” (dark, almost black), curly, wavy hair;

• nose that looks like a hook;

• brown eyes;

• missing teeth;

• deep voice;

• big hands;

• approximately 5' 8" in height (about six inches taller than the complainant);

• kind of fat, on the heavy side;

• shoe size unknown;

• a lot of wrinkles; and

• about 60 years old.

[9] Almost three weeks after her interview with the police, the complainant picked the appellant's photograph out of a “photographic line-up” presented to her by the police. The appellant’s photograph was the fifth photograph in the photographic line-up booklet. The officer who conducted the identification procedure testified that the complainant said, “that’s not him”, when shown each of the first four photographs. When she saw the fifth photograph, the complainant said, “that’s him”.

[10] The fifth photograph was the only photograph in the booklet depicting a man with a full moustache. The complainant had not mentioned facial hair in her videotaped statement to the police. Moreover, the photograph demonstrates that the appellant has blue eyes, not brown eyes as described by the complainant.

[11] When asked at trial who she thought was in the photograph she selected during the photo line-up, the complainant answered: “[w]ell, the face … the face, I remember … the face looked the same, but the hair and moustache looked different.” She said, “[h]is … When I seen him, his hair and moustache wasn’t even like that.” When asked in what way it “wasn’t like that”, she said, “[l]ike a brush cut. It was grey … pepper/salt, and he had a grey moustache.” This description was very different from her description of the appellant’s hair in her videotaped statement to the police, in which she described her attacker’s hair as dark brown, curly and wavy and made no mention of a moustache or facial hair.

[12] After watching her videotaped statement to the police at trial, the complainant said she made two mistakes in her description of the perpetrator in the statement: his hair and his name. In her videotaped statement to the police, the complainant said her attacker’s name was Mark Williams – as opposed to Marc Charbonneau.

[13] The trial was held almost two years after the date of the sexual assault. The appellant was in the courtroom at the time. However, when the complainant was asked to look around the courtroom during her examination in-chief, she said she did not recognize the appellant, “unless he’s gained a lot of weight, or something.”[^2]

3. Discussion

(i) Did the trial judge err in her instructions to the jury concerning eyewitness identification evidence?

[14] In his factum, appellant’s counsel argued that the eyewitness identification evidence in this case was so flawed as to make the guilty verdict unreasonable. During oral argument, appellant’s counsel acknowledged that, when combined with the circumstantial evidence of identity, the identification evidence was sufficient to support a guilty verdict. Nonetheless, appellant’s counsel maintained that the trial judge made reversible errors in her instructions to the jury concerning the eyewitness identification evidence.

[15] In particular, the appellant submitted that the errors and inconsistencies in the complainant’s descriptions of her attacker made her identification of the appellant virtually no identification at all. This was particularly the case given that the complainant was unable to identify the appellant in the courtroom at trial.

[16] The appellant argued that, in these circumstances, the trial judge should have told the jury that the complainant’s inability to identify the appellant in the courtroom, combined with her inconsistencies when describing her attacker’s physical appearance, required the jury to be extremely cautious before accepting the complainant’s evidence. Moreover, the trial judge should have specifically instructed the jury that the errors and inconsistencies in the complainant’s description were capable of raising a reasonable doubt. Finally, in her charge to the jury the trial judge should have emphasized that there is no link between a witness’s certainty at the time of a photo line-up identification and the reliability of that identification.

[17] Instead, the trial judge gave the following concluding instruction on identification, which on appeal the appellant claimed undermined some of the trial judge’s earlier cautions:

It is not necessary that an identification witness – such as [the complainant], in this case – be free from doubt about the correctness or certainty of her identification, or that she continued to be able to identify the accused as the offender, at the time of trial. What is required, however, before you find [the appellant] guilty of the offence, is that you be satisfied, beyond a reasonable doubt, on the whole of the evidence, that it was [the appellant] who committed the offence.

I should also add that, at no time, while giving her evidence in court, did [the complainant] express any doubt about her identification at the time of the photo line-up. What she did express was that, today, she did not recognize [the appellant], and was not able to say, today, that he was her assailant. [Emphasis added.]

[18] The appellant argued that the inadequacies of the charge to the jury could be analogized to those in the charge at issue in R. v. Richards (2004), 2004 CanLII 39047 (ON CA), 70 O.R. (3d) 737 (C.A.). In Richards, this court concluded that the shortcomings of the charge necessitated a new trial.

[19] We do not accept the appellant’s submissions. The trial judge began her instructions on eyewitness identification evidence with the standard instruction that juries must be very cautious about relying on eyewitness testimony to find someone guilty of a criminal offence. She told the jury that “miscarriages of justice” have occurred “because eyewitnesses have made mistakes in identifying the persons whom they saw committing the crime” and that honest witnesses can make mistakes and yet appear convincing.

[20] The trial judge did tell the jury that the complainant’s description of her attacker matched, in many respects, the description given by the arresting officer. And she did state that, apart from the complainant’s descriptions of the attacker’s hair and moustache, the jury might find her evidence quite consistent. However, the trial judge also said that “[i]t was obvious” that the complainant was “not clear about her assailant’s hair and moustache.” In addition, the trial judge reminded the jury that the complainant did not recognize the appellant in the courtroom. Later, when reviewing the evidence and the position of the defence, the trial judge also reminded the jury of the specific errors and inconsistencies in the complainant’s eyewitness evidence identifying the appellant as her attacker.

[21] In our view, it would have been preferable had the trial judge omitted the part of her instruction we have emphasized above in para. 17, reminding the jury that the complainant did not express any doubt about her identification at the time of the photo line-up. As the trial judge had already told the jury, honest and convincing eyewitnesses can still make mistakes.

[22] That said, read as a whole, the trial judge’s instructions were sufficient to bring to the jury’s attention: the frailties in eyewitness identification evidence, generally; the errors and inconsistencies in the complainant’s eyewitness identification evidence, specifically; and the requirement that the jury was not to convict the appellant unless satisfied of his guilt beyond a reasonable doubt. Unlike Richards, it was evident in the case at bar that the trial judge made a concerted effort to balance in her charge: (i) the specific frailties of the complainant’s evidence, and (ii) the evidence which supported the complainant’s testimony.

[23] We also agree with counsel’s acknowledgment that, when combined with the circumstantial evidence of identity, the identification evidence was capable of supporting a guilty verdict. Accordingly, we do not give effect to this ground of appeal.

(ii) Did the trial judge err in ruling that, in the event the appellant elected to testify, he would be subject to cross-examination on his criminal record?

[24] At the conclusion of the Crown’s case, defence counsel at trial (not Mr. Snell) brought a Corbett[^3] application seeking a ruling that the Crown be prohibited from cross-examining the appellant on two convictions for sexual assault entered in 1992. Although the trial judge ruled that the Crown could cross-examine the appellant on these two entries, she qualified her ruling by directing that the Crown could not refer to the sexual nature of the assaults.

[25] On appeal, the appellant argues that the trial judge erred in holding that the appellant could be cross-examined on the two convictions at issue. Specifically, the appellant argues that the trial judge erred because, in reaching her decision, the trial judge relied, in part, on the fact that appellant’s counsel had cross-examined the complainant (and other witnesses) about the complainant’s mental health.

[26] We do not accept the appellant’s argument. Even if the trial judge erred in this aspect of her reasoning, we see no error in the remainder of her reasons nor in her ultimate decision on the Corbett application.

[27] The appellant had multiple entries for assault and other offences in his criminal record. However, the trial judge noted that deleting reference to the 1992 convictions from his records would suggest that there was a significant period in which the appellant “lived a law-abiding life in the community” when, in reality, he was serving a penitentiary sentence. As well, the trial judge noted, the sentences he received for the 1992 convictions were significantly longer than any other sentence he has received. In her words, allowing cross-examination on these convictions would allow the jury to “fairly gauge just how hardened a criminal they consider [the appellant] to be, and what impact his criminal record has on their assessment of his credibility.”

[28] Throughout her reasons on the Corbett application, the trial judge properly focused on the need to weigh the probative value of the evidence to the jury’s assessment of the appellant’s credibility against the prejudicial effect of its inclusion.

[29] Moreover, it was appropriate for the trial judge to “sanitize” the appellant’s record by requiring the sexual assaults from 1992 to be described only as assaults: R. v. Batte (2000), 2000 CanLII 5750 (ON CA), 145 C.C.C. (3d) 498 (Ont. C.A.), at para. 51. Doing so reduced any potential prejudice to the appellant.

[30] Even if the trial judge erred by considering the questions about the complainant’s mental health in the course of her ruling on the Corbett application, we are of the opinion that there was no reasonable prospect that the application would have been decided differently if the error had not been made: see s. 686(1)(b)(iii) of the Criminal Code.

4. Disposition

[31] The appeal is therefore dismissed.

Signed: “Karen M. Weiler J.A.”

“Janet Simmons J.A.”

“E. A. Cronk J.A.”

Released: “JS” MAY 14, 2012

[^1]: At the outset of his oral argument, appellant’s counsel abandoned the second ground of appeal listed in his factum: the trial judge erred in instructing the jury to ignore the complainant's mental disability. During the course of oral argument, appellant’s counsel acknowledged that, taking account of the circumstantial evidence of identification, the verdict is not unreasonable.

[^2]: The arresting officer testified at trial. He was asked to compare the appearance of the appellant at arrest and at trial. He observed, among other things, that the appellant was heavier at the trial than he was at the time of arrest.

[^3]: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670.