COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Virgo, 2016 ONCA 792

DATE: 20161027

DOCKET: C59092

Watt, Lauwers and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roderick Virgo

Appellant

Mark C. Halfyard and Breana Vandebeek for the appellant

Chris Chorney, for the respondent

Heard: April 14, 2016

On appeal from the conviction entered by Justice Thomas A. Bielby of the Superior Court of Justice, sitting with a jury, dated March 6, 2014.

B.W. Miller J.A.:

Overview

[1] Two brothers, Shahroze Shah and Shahzeb Shah, were stabbed in a barroom brawl at the Jet Fox Bar in Mississauga. The fight began at a pool table, near the DJ booth where the appellant was working, and carried on into the parking lot.

[2] In a police interview admitted into evidence, the appellant admitted he was at the bar, he was involved in the fight, and he was in possession of a knife for a period of time during the fight. He denied he stabbed either of the brothers and insisted that he was only involved in the altercation as a peacekeeper.

[3] A jury convicted the appellant of aggravated assault of Shahzeb, and acquitted him of aggravated assault of Shahroze. The conviction turned on the evidence of Shahzeb, who testified that, as he was exchanging punches with another patron, the appellant stabbed him from the side. He did not see it happen, but testified that, after being stabbed, he turned and saw the appellant beside him holding out a knife.

[4] The appellant argues he was convicted on the basis of uncorroborated eyewitness testimony of a single witness, and the jury ought to have been cautioned about the frailties associated with eyewitness identification. The Crown disagrees, and argues no caution was necessary: the appellant admitted he was present, was in close proximity to the witness, and was involved in the altercation. The identity of the person that Shahzeb believed to have stabbed him was not in dispute: only whether that person, the appellant, in fact stabbed him.

[5] I reject the Crown’s attempt to distinguish this case from other eyewitness identification cases, for the reasons set out below. I would allow the appeal on the basis that the trial judge erred in not specifically instructing the jury on the frailties of eyewitness identification and would order a new trial.

Issues

[6] The appellant raises three issues on appeal. He argues the trial judge erred: (1) by not providing the jury with an eyewitness identification instruction; (2) by providing a confusing instruction on lack of evidence; and (3) by not instructing the jury that certain after-the-fact evidence could be evidence of innocence. Given my conclusion that the appellant has succeeded on the first issue on appeal, it is not necessary to consider the remaining issues in these reasons.

Analysis

[7] The only question, as the trial judge instructed the jury, was whether it was the appellant who stabbed Shahzeb: “the real issue for you to decide is whether or not the Crown has proven to you beyond a reasonable doubt that it was Mr. Virgo…who stabbed Shahzeb Shah”.

[8] The Crown argued on appeal that this should not be treated as a typical eyewitness identification case, and that no special instruction was needed. There was, after all, no issue as to the identity of the appellant. This is not a “fleeting glance” identification case. The appellant admitted to being present – he was working at the bar as the DJ – and admitted to being involved in the fight. The blood of Shahzeb’s brother was found on his clothing. The appellant’s appearance was distinctive since he had dreadlocks. Although the appellant told police that there were two other black males with dreadlocks in the bar, these individuals were not involved in the bar fight.

[9] The Crown argues that it is unsurprising that trial counsel did not raise the issue of eyewitness identification, because the case did not depend on Shahzeb’s identification of the appellant. It was not about whether it was the appellant who was there; it was about whether the appellant stabbed Shahzeb. The Crown urges this court to adopt the proposition from R. v. Slater, [1995] 1 Cr. App. R. 584 (Eng. CA) that where the accused admits to being present, and the only issue is whether the accused committed the offence, no specific eyewitness identification instruction is needed.

[10] I reject the Crown’s submission for two reasons.

[11] First, it relies on an untenable distinction between eyewitness identification of an accused which requires a specific jury charge, and eyewitness observation of an accused committing the actus reus of an offence, which does not require a specific jury charge. Eyewitness identification, however, is most often (though not always) in the context of a person doing something: e.g. committing some element of an offence, leaving the scene of a crime, communicating with another party. In this case, the question is not whether the witness observed the appellant at the bar on the night in question. Rather, it is whether the witness observed the appellant thrusting a knife towards him. Both are questions of identification.

[12] Second, the same reasons for providing the jury with a caution in “fleeting glance” cases may also apply to cases where the presence of the accused is not in dispute. In both cases, the reliability of a witness’s observation is in issue. The fact that an accused admits to being present at a crime scene does not resolve that issue. The fact that the appellant admitted being in the bar, participating in the fight, and being in close proximity to Shahzeb, does not resolve the question of whether the appellant stabbed Shahzeb, or enhance the reliability of Shahzeb’s evidence that he observed the appellant with a knife at his side, thrusting it towards him.

[13] The general principles governing jury instructions for eyewitness identification are of long standing and were surveyed by this court in R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481 (C.A.), at paras. 79-83. In that case, this court adopted the statement of principle from Scarman L.J. in R. v. Keane (1977), 65 Cr. App. R. 247 (C.A.), at p. 248:

The principle is the special need for caution when the issue turns on the evidence of visual identification: the practice has to be a careful summing-up, which not only contains a warning but also exposes to the jury the weaknesses and dangers of identification evidence both in general and in the circumstances of the particular case.

[14] See also R. v. Bailey, 2016 ONCA 516 where this court recently discussed the importance of tailoring model jury instructions to the particular eyewitness identification issue in the case.

[15] In this case, in the opening instructions to the jury, the trial judge gave standard guidance about the testimony of witnesses:

But here are a few questions you might want to keep in mind as we proceed…Does the witness seem able to make accurate and complete observations about the event? Did he or she have a good opportunity to do so? What were the circumstances in which the observation was made, and what was the condition of the witness? Was the event itself usual or routine? …Does the witness have any reason to remember what was – what it was about which or she testified? Does the witness seem to be reporting to you what he or she saw or heard or simply putting together an account based on information obtained from other sources, rather than personal information?

[16] These instructions were sound, but did not go far enough. The trial judge was obligated to specifically call to the jury’s attention the dangers of eyewitness identification. In the charge to the jury, there was neither a general nor a specific instruction addressing the frailties of eyewitness identification in the circumstances of this particular case. While defence counsel reviewed the draft charge to the jury and did not object at the pre-charge conference to the absence of an eyewitness instruction, it is ultimately the responsibility of the trial judge to ensure that the necessary charge is given.

[17] The charge to the jury ought to have drawn attention to the circumstances under which the identification of the appellant was made, including:

(i) The chaos of the bar fight;

(ii) The poor lighting;

(iii) The speed at which events transpired;

(iv) The stress the complainant was under;

(v) The distractions faced by the complainant, including his participation in multiple fights with multiple assailants;

(vi) The inconsistency between the complainant’s testimony that he was stabbed from the side and the objective evidence placing the stab wound directly to his front;

(vii) The complainant’s lack of prior dealings with the appellant;

(viii) The complainant’s initial uncertainty as to whether the weapon was a knife or a piece of broken glass;

(ix) The complainant’s testimony that another individual similar in appearance to the appellant was involved in the bar fight;

(x) The complainant’s increased certainty as to the identification of the appellant by the time of trial.

[18] In addition to these instructions specific to the facts of the case, there ought to have been a general caution about the tenuous relationship between a witness’s confidence in identifying an accused and the accuracy of the evidence.

Disposition

[19] Identification was a central issue in this case. The appellant’s conviction largely turned on Shahzeb’s eyewitness evidence that it was the appellant who stabbed him. The failure to properly instruct the jury on eyewitness identification both generally and with reference to the facts in this case therefore goes beyond a mere minor wrong or substantial irregularity, and therefore a new trial is required.

[20] I would allow the appeal and order a new trial.

Released: “DW” OCT 27 2016

“B.W. Miller J.A.”

“I agree. David Watt J.A.”

“I agree. P. Lauwers J.A.”