COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Charles, 2016 ONCA 892

DATE: 20161125

DOCKET: C58560 & C58521

Gillese, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gregory Charles and Carl Renous

Appellants

Michael Dineen and Gerald Chan, for the appellant Carl Renous

Carlos F. Rippell, for the appellant Gregory Charles

John Patton and Katie Doherty, for the respondent

Heard: September 15, 2016

On appeal from the convictions entered on November 16, 2013 by Justice R. Cary Boswell of the Superior Court of Justice, sitting with a jury.

Rouleau J.A.:

A. Overview

[1] The central issue in this appeal is whether the jury came to an unreasonable verdict when it convicted both appellants of attempted murder.

[2] The convictions rest almost exclusively on the evidence of the victim, James Pierre. The two appellants, Gregory Charles and Carl Renous, argue that Mr. Pierre hardly knew them and that, as a result, this should be viewed as an identification case. They submit that Mr. Pierre had little opportunity to see his attackers and that his evidence at trial contradicted many of the statements he had made earlier, including whether he was in fact able to identify his assailants at the time of the attack.

[3] In addition to weaknesses in the identification evidence, the appellants argue that Mr. Pierre’s evidence was unreliable and in parts clearly unbelievable. In these circumstances, in the appellants’ view, the risk of wrongful conviction is high and the verdict is unreasonable.

[4] The appellants also argue that the trial judge erred in not giving a Vetrovec warning, in admitting cellular telephone records into evidence and in his treatment of eyewitness identification in his charge to the jury.

B. Facts

[5] Mr. Pierre was the Crown’s key witness in the trial of his two alleged assailants. He was born in Haiti and came to Canada when he was 17 years old. He lived in Montreal at the time of the assault. Mr. Pierre speaks Creole, French, English and some Spanish. He testified at trial in English and, from a review of the transcripts, it is apparent that he did so with some difficulty.

(1) The assault

[6] On November 14, 2010, the day before the attack, Mr. Pierre traveled from Montreal to Toronto to visit his girlfriend. This was a trip that he made frequently.

[7] At around 8:00 p.m. on November 15, after visiting an acquaintance during the day, Mr. Pierre returned to his girlfriend’s home in Vaughan. It was a dark and rainy evening. He parked the car he was driving, a Honda Accord, on the street not far from the home. Shortly after entering the home, he became concerned that, while he was sleeping, his girlfriend might search his car and find that he had condoms stored in his wallet. This would suggest that he was seeing other women. As a result, at approximately 8:30 p.m., he went outside to his car to retrieve his wallet.

[8] Just as Mr. Pierre opened the driver’s side door and reached into the vehicle, he heard someone say his name. He looked to his right and saw two men about 15 feet away. He recognized them despite the fact that they wore black hooded sweatshirts with their hoods pulled up and were approaching quickly. He was immediately struck on the head with a baseball bat. He fled and his two assailants gave chase. Mr. Pierre ran across the street toward a neighbour’s backyard. He was cornered at a fence on the neighbour’s property and further assaulted. He was struck repeatedly with the baseball bat and, according to his testimony, was stabbed 32 times.

[9] Two neighbors witnessed part of the attack. Both of them recognized Mr. Pierre from around the neighborhood. One of them, Mr. Kreslin, heard banging noises against the wall of his house and went outside with his father to investigate. Their arrival interrupted the attack and the assailants quickly fled. Mr. Kreslin then called an ambulance.

[10] Mr. Kreslin testified at trial that he saw some of the facial skin and eyes of one assailant who appeared to have black skin and light, possibly green, eyes. He thought the other man was black, as well, but acknowledged this may have been an assumption on his part.

[11] Another neighbour, Mr. Ditta, came out of his house after hearing a scream. He saw the attackers fleeing and he unsuccessfully pursued them, after which he returned to attend to the injured Mr. Pierre. Mr. Ditta testified that he asked the gravely wounded Mr. Pierre who had injured him. Mr. Pierre responded by uttering a word that was unclear but sounded like “Carl” or “Carlton” spoken in a French or Jamaican accent. Mr. Pierre later testified that he was attempting to refer to Carl Renous.

[12] Mr. Pierre suffered life-threatening injuries from the attack. He was in a coma for approximately two weeks. His injuries included a gash on his head, stab wounds all over his body and a cut to his stomach so severe that his intestines were spilling out. In the course of his recovery he was initially unable to speak and required a breathing tube. He was hospitalized for months in both Toronto and Montreal and required significant painkilling medication.

(2) The investigation

[13] On December 5, 2010, upon awakening from his coma and still unable to speak, Mr. Pierre attempted to identify his attackers to police in the hospital. He wrote down the word “Kall” and then nodded in the affirmative when asked whether he meant “Carl” or “Carlo”. He then wrote down the name “Karl Atir”. Mr. Pierre later testified that Carl Atire was a man with whom he had attended high school in Montreal some 14 years earlier. He told the jury that he wrote the name in error as a result of the effects of his medication and injuries. He had meant to refer to Carl Renous, whose last name he did not recall at that time.

[14] The next day, with Mr. Pierre’s health in critical condition and his prognosis still uncertain, the police carried out a rough identification procedure. This interaction was videotaped and shown to the jury. In his testimony, the officer who conducted the identification procedure acknowledged that Mr. Pierre’s health made the circumstances “far from ideal”. He showed Mr. Pierre a series of 11 photographs of persons of interest, including friends and photographs obtained from Facebook. Mr. Pierre gestured affirmatively when shown the fourth picture, which was of Mr. Charles. The officer then told Mr. Pierre that the photograph was of Mr. Charles and asked him to confirm whether the identified person had been involved in the attack. Mr. Pierre again gestured affirmatively. This photograph was subsequently lost but it is visible in the videotape. The 11 photographs are of various sizes and a review of the videotape shows that, of the 11 photographs, Mr. Charles’ photograph was by far the largest. No photograph was included of Mr. Renous.

[15] On December 13, 2010, police attended the hospital again. Mr. Pierre still could not speak. During the interaction, which was also videotaped, an officer showed two photographs to Mr. Pierre: one of Mr. Charles and one of another man. Mr. Pierre motioned toward the photograph of Mr. Charles. He mouthed ‘yes’ when asked a leading question, namely whether Mr. Charles goes by the name ‘Carl’ or ‘Carlito’. However, there was no evidence suggesting that Mr. Charles ever used those nicknames. Mr. Pierre later testified that this mistake was, again, the result of his grave medical condition and heavy medication.

[16] On January 24, 2011, Mr. Pierre was able to speak to police for the first time from a hospital bed in Montreal. At one point, he appeared to state that he could not see who attacked him but he denied this at trial. It is during this interaction that Mr. Pierre first named Carl Renous to police as one of his assailants. He later testified in a voir dire that he only recalled Mr. Renous’ full name after he was reminded of it by a visitor to his hospital room whose identity he could not recall; that evidence was not presented to the jury. During the same hospital visit, police also took a statement from Mr. Pierre in which he identified a “Greg” as an assailant whom he recognized.

[17] The next day, on January 25, 2011, police conducted a second photograph line-up at the hospital. This interaction was again videotaped. Mr. Pierre was shown a different photograph of Mr. Charles from the one used on December 6, in response to which he stated “yeah, that’s Greg” but he still could not provide a last name. Again, no photograph was included of Mr. Renous.

[18] Cellular telephone records for Mr. Charles were obtained by police and reviewed on June 14, 2012, well after the preliminary hearing and while judicial pre-trial hearings were being conducted in the Superior Court. Mr. Charles had provided this telephone number to his probation officer in a voicemail message just weeks prior to the attack, on October 27, 2010. The records, based on cell tower locations, place Mr. Charles in south Toronto near The Queensway at around 5:00 p.m. on the day of the attack. At 7:26 p.m., less than an hour before the attack, the phone made a call that lasted 227 seconds and accessed two towers in Vaughan. The next traceable call was made at 9:33 p.m. and placed the phone back in the south part of Toronto, this time in Etobicoke south of the Islington subway station.

(3) Mr. Pierre’s identification at trial

[19] Mr. Pierre testified at trial that he recognized his assailants as two men he knew from Montreal, the appellants Carl Renous and Gregory Charles.

[20] He told the jury he first met Mr. Renous about eight years earlier in a mall in Montreal. At the time of the attack, he recalled Mr. Renous’ first name but not his last, although he had heard people say his full name before. After first meeting Mr. Renous, Mr. Pierre estimated he had seen him less than 20 times and that they had greeted each other on about 10 occasions. Mr. Pierre stated that Mr. Renous had once visited his home and that he had seen him three or four times in the six months leading up to the attack, including at a Toronto nightclub on the night before the attack.

[21] Mr. Pierre testified that he met Mr. Charles four years before the attack. They would greet each other occasionally on the street. Around a year prior to the events of November 15, 2010, Mr. Charles twice called Mr. Pierre on the telephone to invite him to nightclubs but Mr. Pierre did not attend.

[22] Mr. Pierre always spoke in Creole with both appellants. He described himself as friends with neither of them.

[23] Mr. Pierre told the jury that he was able to recognize his attackers multiple times and at different locations during the attack. He testified that he could see their faces when he first saw them approaching upon hearing his name called. Later, after fleeing to the neighbour’s property, he said he could see their faces again. He testified that he recognized the voice of Mr. Charles, who called his name and spoke to him during the attack, uttering phrases such as “I’m gonna kill you” and “this is your last day.” Mr. Renous did not speak.

[24] Mr. Pierre acknowledged that, some two months after the attack, when he first began to recover from his injuries and began to be able to speak, he was not able to provide detailed descriptions of his attackers’ appearances, such as their hairstyles, facial hair, pant style, jewellery, height or weight. He further acknowledged that, in the course of the police investigation, he had erroneously written the name of Karl Atire and erred in agreeing with the police suggestion that Mr. Charles went by Carl or Carlito. As noted earlier, he attributed these errors to his medication and his serious medical condition.

(4) Mr. Pierre’s credibility at trial

[25] Issues were raised by the defence with respect to Mr. Pierre’s credibility.

[26] There was extensive cross-examination suggesting that Mr. Pierre was engaged in illegal and/or unsavoury activity relating to drugs, prostitution and managing strippers. He denied these suggestions.

[27] He was also questioned about two previous convictions for offences of dishonesty, namely providing false names to police officers during roadside traffic stops. Mr. Pierre admitted to this and explained that on these occasions he provided his cousin’s name to police because he was driving while his license was suspended for unpaid fines and he wanted to avoid incurring further fines.

[28] Both at trial and on this appeal, the defence noted specific aspects of Mr. Pierre’s evidence that they allege undermined his credibility and the reliability of his identification of the appellants:

• Mr. Pierre’s description of his legitimate income, running a small clothing store, was inconsistent with his apparent lifestyle, which included activities such as frequenting expensive nightclubs and taking vacations.

• Mr. Pierre was evasive about the house and expensive vehicles owned and/or leased by his girlfriend. He denied knowing the source of the money that she used to buy them.

• Mr. Pierre denied receiving income from strippers or prostitution but acknowledged that he would sometimes drive strippers to strip clubs. Police found over 100 condoms and a criminal record check for a woman in the Honda he was driving. Mr. Pierre denied knowledge of this and denied obtaining criminal record checks for prospective strippers or prostitutes.

• Police found a receipt in Mr. Pierre’s wallet for a transaction executed the day of the attack using his credit card at a store that sells clothing for strippers. Mr. Pierre explained that his sister or a girlfriend may have used his card without his knowledge. He denied knowledge of this receipt and could not explain its presence in his wallet.

• Mr. Pierre’s evidence and statements made prior to trial contained inconsistencies about important issues such as: what the attackers said to him; his movements before the attack; the extent of his prior relationship to the appellants; whether he was on the phone when he was attacked; when he first identified the appellants as his attackers; and how many other people he knew named Carl.

• There were several inconsistencies between Mr. Pierre’s evidence at trial and statements made at the preliminary inquiry with respect to whether Mr. Renous had ever visited Mr. Pierre’s home, how many times he had seen him in the months before the attack and whether he knew Mr. Renous by his full name.

(5) The directed verdict ruling

[29] At the close of the Crown’s case, Mr. Charles brought a motion for a directed verdict of acquittal. He argued that Mr. Pierre’s in-dock identification of him as an assailant should be given no weight. First, he asserted that he and Mr. Pierre were near strangers and so the in-dock identification was not sufficiently reliable. Second, he pointed to earlier problems tainting the identification narrative such that it would be dangerous to leave Mr. Pierre’s identification evidence with the jury.

[30] On November 13, 2013, the trial judge issued his 41-paragraph ruling on the directed verdict motion: R. v. Charles, 2013 ONSC 7008. The trial judge acknowledged that the January 25 photograph line-up was suspect. However, in his view this was still a recognition case, albeit not the strongest one. Accordingly, even if no weight were attached to the January 25 photograph line-up, as well as to the later photograph line-up because of the possibility of it being tainted, there remained an in-dock identification of a person known to Mr. Pierre. The judge ruled that the determination of Mr. Pierre’s credibility and reliability on that issue should be left with the jury. In his view, if believed, Mr. Pierre’s evidence could support an inference of guilt beyond reasonable doubt. The motion for a directed verdict therefore failed.

(6) The verdict

[31] The defendants did not testify and called no evidence. The jury returned a verdict of guilt against both the appellants.

C. Issues on Appeal

[32] The following issues are raised by the appellants in this appeal:

1. Were the convictions of Mr. Renous and Mr. Charles unreasonable?

2. Did the trial judge err by declining to provide a Vetrovec caution?

3. Was the charge to the jury sufficient with respect to eyewitness identification evidence?

4. Did the trial judge err by admitting Mr. Charles’ cellular telephone number into evidence?

D. Discussion

(1) Were the convictions unreasonable?

[33] The appellants emphasize that their convictions are based almost exclusively on the unsupported evidence of one witness, Mr. Pierre. He is, the appellants argue, an unsavoury witness whose evidence is highly implausible. Further, there is no evidence of motive and there are serious problems with the identification procedure that was followed by the police.

[34] The appellants recognize that the test to demonstrate that a verdict was unreasonable is an exacting one, but they argue that where, as here, the conviction is founded on eyewitness identification, the risk of a wrongful conviction is heightened. History has shown that juries do not understand that a witness can have an honest but mistaken belief in having identified the attackers. The danger of a wrongful conviction is all the more present in the circumstances of the present case where the credibility of the key witness is highly questionable.

[35] In their submission, the present case is similar to R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 (C.A.). In Tat, Doherty J.A., writing for the court, explained at paras. 99 and 100 why the court has latitude to intervene in cases such as this one:

While recognizing the limited review permitted under s. 686(1)(a)(i), convictions based on eyewitness identification evidence are particularly well suited to review under that section. This is so because of the well recognized potential for injustice in such cases and the suitability of the appellate review process to cases which turn primarily on the reliability of eyewitness evidence and not the credibility of the eyewitness…

The extensive case law arising out of the review of convictions based on eyewitness identification reveals that the concerns about the reasonableness of such verdicts are particularly high where the person identified is a stranger to the witness, the circumstances of the identification are not conducive to an accurate identification, pre-trial identification processes are flawed and where there is no other evidence tending to confirm or support the identification evidence.

[36] In the appellants’ submission, all four of the concerns listed in Tat are present here.

[37] First, as in Tat, the circumstances of the identification by Mr. Pierre on the night of the attack were poor. It was night time. His attackers were hooded. He saw them for only a moment before being hit on the head with a baseball bat. Mr. Pierre gave inconsistent accounts of how the assault happened and he could not even say whether his attackers had any facial hair.

[38] Second, the appellants maintain that the pre-trial identification process was obviously flawed.

[39] Mr. Renous was never identified by a photograph line-up procedure. Further, Mr. Pierre initially identified a different Carl, Karl Atire, and only named Mr. Renous after a mysterious visit to his hospital room by a man whose identity he could not recall.

[40] As for Mr. Charles, there are reliability concerns in the photograph line-up procedure used to identify him, including the photographs not being uniform in size and Mr. Pierre having just awaken from a two-week coma at the time of the first line-up procedure. The photograph of Mr. Charles used in the line-up was lost by the police, making it impossible to determine whether the photograph was in fact one of Mr. Charles. In any event, the police detective administering the line-up told Mr. Pierre beforehand that a photograph of the suspected attacker would be amongst those he was shown.

[41] The appellants also argue that Mr. Pierre’s testimony that he recognized Mr. Charles’ voice is of questionable value. He hardly knew Mr. Charles and, in any event, voice identification evidence is even weaker and more suspect than eyewitness evidence.

[42] Third, the appellants submit that there was virtually no confirmatory evidence with respect to the identification of the attackers and no circumstantial evidence, such as evidence of motive or a connection between the two appellants.

[43] The cellphone evidence placing Mr. Charles in the general area at the time of the assault is, they argue, of little probative value. On any given day, there are hundreds of thousands people in that busy area of the City. As for the neighbours’ evidence, it was of virtually no assistance in determining the identity of the attackers.

[44] Fourth, the more difficult of the points listed in Tat to apply in this case is whether the person identified is a stranger to the witness. Here, the appellants argue that Mr. Pierre’s evidence regarding his relationship with the two appellants is highly suspect. While the appellants were not total strangers to Mr. Pierre, it was clear that Mr. Pierre had met them on only a small number of previous occasions and he gave inconsistent evidence as to those previous contacts. His claims about the extent of his previous exposure to the accused appeared to expand over time, from two or three encounters in his testimony at the preliminary inquiry to around ten encounters by the time of his trial testimony.

[45] To the concerns listed in Tat, the appellants add a fifth concern, that is, that Mr. Pierre suffered from a very serious lack of credibility as a witness.

[46] The appellants maintain that Mr. Pierre’s description of how the attack unfolded makes no sense and is implausible. Why would someone go out to his car to get his wallet to prevent his girlfriend from going to the car and finding a condom in his wallet when, as the evidence discloses, he had over 100 other condoms in his car at that time? How would two apparently unrelated people know that Mr. Pierre would come out of his girlfriend’s house at that very moment? Why would they attack him?

[47] Moreover, there was evidence suggesting that Mr. Pierre had a lavish lifestyle and was involved in criminal or other unsavoury activities. This, in the appellants’ submission, puts the lie to Mr. Pierre’s testimony that he had only a modest income from a clothing store he was operating in Montreal. Despite Mr. Pierre’s denials and attempts to explain, his testimony was clearly suspect.

[48] I would not give effect to this ground of appeal. This is not one of those exceptional cases where a verdict reached by a properly instructed jury can or should be interfered with.

[49] The test to demonstrate that a verdict is unreasonable was set out by the Supreme Court of Canada in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168. Within the limits of appellate disadvantage, the appellate court “must re-examine and to some extent reweigh and consider the effect of the evidence” to determine “whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered” (at para. 25).

[50] While Tat is instructive, there is a critical difference between the present case and Tat. The present case is one of recognition and does not involve identification by a witness of a complete stranger. Mr. Pierre’s testimony was that he knew the appellants from his involvement in the Haitian community in Montreal. He testified that he had met them several times and that he recognized them as his attackers on the night in question.

[51] Although Mr. Pierre’s evidence was clearly problematic in parts, it was not completely implausible and totally unbelievable as suggested by the appellants. It must be examined as a whole and in context. As submitted by the Crown, the inconsistencies and frailties in Mr. Pierre’s identification evidence are explicable due to his long recovery from serious injuries and his difficulty with the English language. Importantly, the timeline of the identification narrative shows a pattern that supports Mr. Pierre’s identification of the appellants. He named a “Carl” immediately after being attacked. In his Toronto hospital room on December 5, 2010, he again named a “Carl” in writing. When he was first able to speak from his Montreal hospital bed on January 24, 2011, he named a “Greg”.

[52] Mr. Pierre identified Mr. Charles through the photograph identification procedure that, while imperfect, was videotaped. The jury had the benefit of viewing both videotapes as well as of assessing Mr. Pierre’s explanations in the stand.

[53] The fact that Mr. Pierre did not know the appellants’ last names is not unusual and little can be inferred from this. Many acquaintances are developed and maintained on a first name basis without mention or use of last names. Mr. Pierre’s recognition evidence is strengthened by his evidence that he recognized the voice of one of his attackers as being the voice of Mr. Charles.

[54] The record also provides some support for Mr. Pierre’s testimony.

[55] Both neighbours recognized Mr. Pierre and saw two assailants flee after injuring Mr. Pierre. Upon being asked by Mr. Ditta who had attacked him, Mr. Pierre—who was no doubt contemplating death—responded “Carl” or “Carlton”.

[56] The photographs of the crime scene are also consistent with the attack having occurred in the manner Mr. Pierre described.

[57] Finally, the cellphone records placed Mr. Charles within 10 minutes of the crime scene only one hour before the attack. Mr. Charles’ overall movements as disclosed by the cellphone records are consistent with him leaving Toronto, coming to Vaughan at the time of the attack and returning to Toronto shortly after the attack.

[58] Determining Mr. Pierre’s credibility was up to the jury. It was for them to decide whether Mr. Pierre was lying about his sources of income and his lifestyle. The jury may well have accepted Mr. Pierre’s explanations as to these matters. Moreover, even if the jury was of the view that Mr. Pierre was lying about his lifestyle and income, the jury still had to assess the impact that this would have had on his testimony regarding the attack itself and the identification of his attackers. As the Supreme Court of Canada explained in R. v. W. H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 32, a jury may accept some of a witness’ evidence while rejecting other parts of it.

[59] Further, in R. v. W. H., at para. 41,the Supreme Court went on to confirm that:

The determination [of credibility] turns not only upon such factors as the assessment of the significance of any alleged inconsistencies or motives for concoction, which may be susceptible of reasoned review by a court of appeal, but on the demeanour of the witness and the common sense of the jury, which cannot be assessed by the court of appeal.

[60] Based on the evidence summarized above and their assessment of Mr. Pierre’s demeanour on the stand before them, the jury was clearly satisfied of the guilt of both appellants beyond a reasonable doubt. I see no basis on which to interfere.

(2) Did the trial judge err by declining to provide the jury with a Vetrovec caution?

[61] The appellants argue that a Vetrovec warning in this case was mandatory and that the jury ought to have been given a clear and sharp warning to alert them to the dangers of adopting the evidence of an “unsavoury”, “untrustworthy”, “unreliable” or “tainted” witness: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104.

[62] In the appellants’ submission, the trial judge erred in concluding that a Vetrovec warning was not required. They signal several flaws in his analysis, namely that:

• He focused on Mr. Pierre’s general character rather than the trustworthiness of his testimony.

• He discounted troubling inconsistencies in, and the implausibility of, Mr. Pierre’s evidence because Mr. Pierre had not “admitted to lying under oath”.

• He did not balance Mr. Pierre’s credibility problems against the importance of his evidence to the Crown’s case.

• Based almost exclusively on Mr. Pierre’s denial of having lied, he concluded that Mr. Pierre was not “unsavoury”, despite the considerable evidence demonstrating that Mr. Pierre had a connection to illegal or unsavoury prostitution activities.

[63] I would not give effect to these submissions.

[64] It is well settled that the decision whether to provide a Vetrovec caution lies at the discretion of the trial judge. There is no set rule or formula for determining when such a warning is necessary. Two main factors are to be considered: (1) the importance of the witness’ testimony to the Crown’s case; and (2) the credibility of the witness, weighing factors such as the witness’ disreputable character and his or her having lied under oath: Khela, at para. 35.

[65] The Vetrovec caution “is meant to bring home to lay jurors the accumulated wisdom of the law’s experience with unsavoury witnesses” in circumstances in which jurors might not otherwise appreciate the need or reason to be skeptical of the evidence and to be cautious in the acceptance of it: Khela, at para. 4.

[66] The trial judge, however, is not required to give a clear and sharp warning where the danger in relying on a particular witness’ evidence has not been established. Provided there is a foundation for the exercise of the discretion in the trial record, appellate courts should exercise restraint and defer to the trial judge’s determination on a Vetrovec application. The trial judge is the one best situated to assess the evidence and context as well as the effect that a particular instruction might have on the jury.

[67] In his ruling on the Vetrovec application, the trial judge correctly identified the two key factors to consider: the importance of the witness’ evidence and the problems with the witness’ credibility. The trial judge found that Mr. Pierre’s evidence was central to the Crown’s case and he then went on to consider the problems with Mr. Pierre’s credibility. The trial judge acknowledged Mr. Pierre’s prior convictions that pointed to his being untrustworthy. He determined, however, that the appellants’ efforts to paint Mr. Pierre as being engaged in criminal or unsavoury activities such as drug dealing and prostitution had not “gained any real traction during cross-examination”.

[68] As for the inconsistencies in Mr. Pierre’s evidence, he found that these went more to the reliability of his evidence than to his credibility. In most cases, Mr. Pierre had proffered explanations for the inconsistencies and he never admitted to lying under oath.

[69] The trial judge concluded that a Vetrovec caution was not required and that the concerns of the appellants could be addressed in his final instructions to the jury short of giving a special Vetrovec caution. He would instruct the jury regarding the use it could make of Mr. Pierre’s prior convictions, highlight the numerous inconsistencies in Mr. Pierre’s evidence and caution the jury to carefully consider the reliability of Mr. Pierre’s evidence.

[70] It is apparent from his ruling that the trial judge did not, as the appellants suggest, simply discount the inconsistencies. Further, his final instructions to the jury ensured that the issues with respect to Mr. Pierre’s testimony were readily apparent.

[71] Nor did the trial judge fail to weigh the concerns regarding Mr. Pierre’s testimony against the centrality of that evidence to the Crown’s case. The trial judge was simply of the view that, despite the importance of Mr. Pierre’s testimony to the Crown’s case, he was not the type of unsavoury witness for which a caution was required.

[72] In the circumstances of this case, I agree with the Crown’s submission that Mr. Pierre’s credibility problems were not of such a nature that a Vetrovec warning was mandatory. The trial judge’s assessment and exercise of discretion in that regard was reasonable and ought not to be interfered with on appeal.

(3) Was the charge to the jury sufficient with respect to eyewitness identification evidence?

[73] The appellants argue that the trial judge’s instructions with respect to eyewitness identification were inadequate.

[74] The appellants maintain that, in the circumstances of this case, the jury should have been given specific instructions regarding the serious problems in the initial photograph line-up procedure. These problems included: the fact that the investigating officer did not advise Mr. Pierre that his attacker may not be in the photograph line-up; the fact that the officer told Mr. Pierre the name of Mr. Charles after he motioned toward the picture; and the fact that the photograph of Mr. Charles used in the line-up was much larger than all of the other pictures.

[75] In the appellants’ submission, these problems could not have been cured by the subsequent photograph line-up procedures. The initial errors tainted all future identification procedures including the in-court identification evidence. The procedure was so tainted that virtually no instruction by the trial judge would have been adequate.

[76] The appellants further submit that the trial judge failed to instruct the jury that:

a) the testimony of the neighbour, Mr. Kreslin, that the attacker had green eyes (which Mr. Charles did not have) meant that Mr. Kreslin’s evidence could not be relied on whatsoever to identify Mr. Charles;

b) the in-dock identification should be given no weight;

c) voice identification is even more frail than eyewitness identification evidence and should not be relied on to corroborate the eyewitness identification; and

d) the failure to name an attacker in a case of alleged recognition means that the recognition must be approached with significant caution.

[77] I would not give effect to these submissions.

[78] The trial judge’s jury charge was very fair to the accused and, in my view, contains no reversible error. Trial judges have discretion in deciding how best to apprise the jurors about the frailties of eyewitness identification testimony and, viewed as a whole, the instruction in this case adequately equipped the jury to assess that testimony.

[79] In R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at para. 48, the Supreme Court of Canada confirmed that:

a trial judge must be afforded a certain degree of flexibility in instructing the jury… A trial judge is not required to use “any particular form of words” in instructing the jury regarding the frailties of eyewitness evidence and, rather, must be afforded considerable latitude in deciding how best to apprise the jurors about those frailties.

[80] The frailties of eyewitness identification evidence raised by the appellants were canvassed extensively by the trial judge in his charge to the jury and were carefully blended with discussion of the concept of reasonable doubt. The trial judge spent considerable time on the issue of eyewitness identification evidence. The transcript of this portion of his charge to the jury covers approximately 20 pages.

[81] The trial judge told the jury that they “must be very cautious about relying on eyewitness testimony” to find the appellants guilty in this case. He warned them that, in the past, wrongful convictions have occurred on the basis of mistakes made by honest and confident witnesses. The judge stated that in-court identification is “deceptively credible” and that there is “a very weak link between the confidence level of a witness and the accuracy of his or her evidence.”

[82] The jury was then instructed to assess Mr. Pierre’s reliability and credibility as a witness, and in doing so to consider:

• the circumstances in which Mr. Pierre made his observations, including how well he knew the appellants prior to the attack, the visibility and lighting conditions, possible distractions of his attention, and inconsistencies between his testimony at trial and prior statements made to police and in the preliminary inquiry;

• the circumstances of Mr. Pierre’s identification of the appellants as the persons whom he saw, including assessment of the entire identification narrative—from Mr. Pierre’s purported statements to Mr. Ditta at the scene of the attack to the handwritten and spoken identification procedures conducted in hospital, which were videotaped—and the manner in which the identification process, in particular the photograph line-ups, was conducted.

[83] The trial judge went through Mr. Pierre’s evidence chronologically with respect to each of the above-noted considerations. He discussed how they might apply the relevant legal principles to the facts of the case. At various points, he noted expressly that the jury might find “Mr. Pierre has not been entirely consistent” in his evidence. With respect to the circumstances of Mr. Pierre’s observations, he noted that Mr. Pierre was unable to recall a number of details relating to his attackers or of the attack itself. With respect to the circumstances of Mr. Pierre’s identification of the appellants, the judge reminded the jury of several inconsistencies and weaknesses in Mr. Pierre’s evidence.

[84] The trial judge stressed that identification through a photograph line-up must be independent and untainted. The judge told the jury that “any act which tends to convey to a witness that a person is suspected by the authorities undermines the independence and reliability of photo line-up evidence.” In that light, he advised them to watch and consider the videotape evidence of the photograph line-up procedure in its entirety.

[85] The trial judge told the jury that they should be “cautious” when considering how much weight to place on the photograph line-up evidence. He advised that they might find the manner in which the line-up was conducted and the ways in which it departed from best practices affected its reliability.

[86] The trial judge told the jury that “the credibility and reliability of Mr. Pierre’s evidence is very much in issue, as is the reliability of the identification process with respect to both defendants.”

[87] He then summarized the positions of the parties on that issue. For the Crown, this was a recognition case. Therefore, detailed descriptions were not necessary and Mr. Pierre’s in-court identification of the appellants was supported by other recognition evidence. For the defence, Mr. Pierre was a wholly unreliable and discreditable witness. The defence pointed to a number of weaknesses and inconsistencies in Mr. Pierre’s evidence, problems tainting the identification process, and his criminal record involving offences of dishonesty.

[88] The trial judge concluded that portion of his charge by reminding the jury that the Crown must prove beyond reasonable doubt that it was one or both of the appellants who committed the offence.

[89] In my view, therefore, all of the appellants’ concerns were adequately addressed by the extensive instructions given by the trial judge. Accordingly, this ground of appeal must fail.

(4) Did the trial judge err in admitting Mr. Charles’ cellular telephone number into evidence?

[90] Mr. Charles brought a pre-trial application seeking to exclude evidence that identified him as the owner of the cellular telephone number for which telephone records were obtained and put into evidence.

[91] Mr. Charles had provided this telephone number to his probation officer in the weeks prior to the attack. In Mr. Charles’ submission, he was compelled to provide it and its admission into evidence would infringe his right against self-incrimination. He based this position on the submission that his probation officer was a “person in authority”, that the provision of the number was not voluntary and that its admission was therefore contrary to the common law confessions rule.

[92] The trial judge denied the application to exclude the records. He concluded that a probation officer was not a “person in authority” for purpose of the confessions rule because, at the time the number was provided, there was no prosecution, investigation or other proceeding involving Mr. Charles, over which the probation officer could have exerted influence. The trial judge further stated that, in any event, he would hold that the provision of the phone number was voluntary and made without compulsion or any form of external pressure.

[93] Mr. Charles submits that the trial judge erred in at least two respects.

[94] First, the trial judge erred in concluding that the absence of a contemporaneous proceeding or investigation was dispositive of whether the statement made was made to a person in authority. In Charles’ view, probation officers are in no different position from prison guards who are automatically considered to be persons in a position of authority.

[95] Second, he submits that the trial judge erred in assessing the evidence of voluntariness. The fact that Mr. Charles initiated the call to his probation officer and provided the number of his cellular telephone does not lead to the conclusion that it was voluntary. Mr. Charles argues that the information was provided in the context of an adversarial relationship and that this should undermine any suggestion of voluntariness.

[96] I would not give effect to this ground of appeal.

[97] Whether or not probation officers are presumptively persons of authority need not be determined on this appeal. It is apparent, in my view, that the trial judge correctly concluded that the statement was voluntary.

[98] As the trial judge noted, Mr. Charles left his cellular telephone number as an additional number at which he could be reached by his probation officer. While Mr. Charles was compelled to provide certain information, the cellular telephone number was not part of the information that had been requested of him. The number was provided of his own accord as an administrative convenience and not out of any perceived compulsion to provide that information. On the facts as canvassed by the trial judge, there is simply no air of reality to the assertion that the appellant was somehow compelled, involuntarily, to provide what at the time was innocuous information.

E. Conclusion

[99] For these reasons, I would dismiss the appeals.

Released: “E.E.G.” November 25, 2016

“Paul Rouleau J.A.”

“I agree E.E. Gillese J.A.”

“I agree David Brown J.A.”