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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

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. Huerta, 2020 ONCA 59

DATE: 20200130

DOCKET: C65457

Pardu, Roberts and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Humberto Dapena Huerta

Appellant

Jeff Carolin, for the appellant

Jennifer Trehearne, for the respondent

Heard: December 5, 2019

On appeal from the convictions entered by Justice Susan E. Healey of the Superior Court of Justice, sitting with a jury, on December 7, 2017

Thorburn J.A.:

OVERVIEW

[1] The appellant, Humberto Dapena Huerta, was indicted on eight counts arising from six incidents involving six complainants. The charges included criminal harassment, sexual assault, and sexual interference. All six incidents took place within a radius of 2.7 kilometres, which includes downtown Richmond Hill.

[2] The central issue at trial was the identity of the perpetrator.

[3] The Crown’s theory was that Mr. Huerta loitered near schools and parks in Richmond Hill to run at and grope young-looking women.

[4] Each of the six complainants testified. The Crown was permitted to lead cross-count similar fact evidence.

[5] The Crown also led evidence of three educators (the “educators”) who claimed they saw a man near the school they worked at who resembled the composite sketch released by the York Regional Police. The composite was prepared with the assistance of one of the complainants, J.A. At least two of the three educators testified that the man resembled the composite, he was a suspicious person, and they called 9-1-1 as a result.

[6] During the trial, Mr. Huerta conceded he was the man the educators saw near the school, but denied he was the perpetrator of the charges.

[7] At a trial by jury, Mr. Huerta was convicted of:

a) one count of criminal harassment of N.F.;

b) one count of sexual assault of J.C.; and

c) one count of sexual interference and one count of sexual assault of J.A.

[8] He was acquitted on four other counts relating to three other complainants, C.C., C.O., and K.D.

[9] Mr. Huerta appeals his four convictions.

[10] For reasons that follow, I would allow the appeal and substitute acquittals in respect of each of the convictions.

THE EVIDENCE

A. IDENTIFICATION EVIDENCE OF THE THREE COMPLAINANTS WHOSE COMPLAINTS RESULTED IN CONVICTIONS

[11] The four incidents resulting in convictions are as follows:

a) N.F. was 16 years old. She was walking in a residential area when she noticed a man standing near a car, who began following her. The man walked away from her but when she glanced back, she saw him running toward her. N.F. began to cry and called her mother. The perpetrator never got closer than a metre from her and she only saw him in profile.

b) J.C. was 51 years old but could have been mistaken for a much younger person due to her small stature. J.C. was walking near a high school. She noticed a man across the street and soon thereafter, heard someone running behind her. A man grabbed her and wrapped his arms around her abdomen. He slipped on the snow and they both fell to the ground while he was still holding her tightly. J.C. was on top of the man with her back to his front, the man pushed her aside, said “sorry” and left. J.C. did not get a good view of his face.

c) J.A. was 15 years old. She was walking to a school and saw a man jogging toward her. She tried to get out of the way, but he grabbed her aggressively around the waist and tried to push her to the ground. When he was unable to push her to the ground, he lifted up her skirt, touched her upper thigh, and jogged away. J.A. said she was “face-to-face with the man” just before he grabbed her and got a “relatively good look at his face.”

[12] The Crown’s identification evidence from the three complainants whose complaints resulted in convictions was as follows:

Feature	N.F.	J.C.	J.A.
Ethnicity	Caucasian	Caucasian, “not too white”	Caucasian
Height	5’ 11”	5’ 11”	5’ 10”
Build	Medium build	Medium build, Not too built, not too fat	Medium build
Age	40s	50 or more	Late 40s to early 50s
Hair colour	Salt and pepper hair	Greyish hair
Resemblance	Resembled George Clooney
Distinguishing features			Poor complexion with pockmarks on his cheeks
Accessories	Ray Ban aviator sunglasses, grey winter jacket that was done up, blue jeans, black ankle boots	Sunglasses	Black aviator sunglasses
General vehicle description	Older Japanese car (Toyota, Hyundai or Honda) with rust at the bottom of doors and up onto the doors	4-door vehicle neither old nor new, normal-sized
Vehicle windows	Tinted windows	Tinted windows
Vehicle rims	Alloyed wheels, steely black rims, which she vividly recalled
Vehicle tires	Winter tires
Photo line-up identification	Unable to identify the appellant from photo line-up	Unable to identify the appellant from photo-lineup	Not asked to identify perpetrator from photo lineup but participated in preparation of composite sketch

B. IDENTIFICATION EVIDENCE OF THE COMPLAINANTS WHOSE COMPLAINTS RESULTED IN ACQUITTALS

[13] Three other complainants, where the charges resulted in acquittals, identified the perpetrator as follows:

Feature	C.C.	C.O.	K.D.
Ethnicity	Caucasian	Caucasian with rosy face	Caucasian
Height	5’ 9”	5’ 7”	5’ 9” to 5’ 10”
Build	Stocky, a little bit bigger	Medium build	Medium build; Normal sized, not overweight, not too slim
Age	40s to 50s	More than 45, around 47 years old (although she told police at the time of the incident that the perpetrator was between 30 and 40 years old)	Mid 30s
Hair colour	Brown hair	Dark brown hair in a grown-out buzz cut
Distinguishing features	Russian accent	Moustache
Accessories	Blue winter jacket, wearing hood, beige khaki pants
Photo line-up identification	Selected the appellant’s photo from a photo lineup 8 ½ months after the second incident; “sort of” recognized him

C. THE IDENTIFICATION EVIDENCE OF THE THREE EDUCATORS WHO SAW THE COMPOSITE SKETCH

[14] Following the incident involving J.A., York Regional Police prepared a media release and a composite sketch with J.A.’s input. The composite includes visible pockmarks on the perpetrator’s cheeks which, it is agreed, Mr. Huerta does not have. The composite also depicts a male wearing dark-tinted sunglasses and a dark hood.

[15] Two early childhood educators and a teacher who worked nearby testified that they saw a person in the vicinity of the school who could be the man depicted in the composite.

[16] The identification evidence of those three educators was as follows:

Feature	Ms. Ruffolo	Ms. Alicandro	Ms. Wright
Ethnicity	Caucasian	Caucasian
Height	5’ 5” to 5’ 10”	5’ 10”
Build	Medium build, between 215 and 220 pounds	Medium build, over 180 pounds
Age	45 to 50	Mid 30s to 40s	Mid 40s
Hair	Did not observe hair on his head Salt and pepper beard	Salt and pepper hair Did not observe facial hair	Short Did not observe facial hair
Accessories	Sunglasses with black lenses, baseball cap, and jacket	Sunglasses, dark baseball cap, black leather jacket, dark jeans	Black jacket, black jeans, black hat, dark sunglasses
Distinguishing features	Pockmarks on his cheeks
Resemblance	Resembled composite prepared by J.A.	Resembled composite prepared by J.A. Similar face to composite
General vehicle description	Older four-door car, brownish gold, maybe Hyundai	Black Honda Civic, LX model License plate AVSJ 616

[17] The educators’ evidence also included the following:

• Ms. Ruffolo and Ms. Alicandro testified that the man they identified seemed “suspicious”;

• Ms. Wright testified that she was concerned that the man she saw was the same person assaulting girls in the area;

• Ms. Ruffolo and Ms. Wright testified that the man they saw resembled the composite prepared with the assistance of J.A.;

• Ms. Alicandro and Ms. Wright testified that they called 9-1-1 as a result.

[18] Furthermore, when reviewing the position of the Crown, the trial judge reminded the jury that the Crown told them “the composite developed with the assistance of J.A. was in Sonia Wright’s mind when she observed Mr. Dapena Huerta close by Father Henri Nouwen School on October 9, 2014, and decided to phone the police.”

D. MR. HUERTA’S APPEARANCE AND DESCRIPTION OF HIS VEHICLE

[19] Mr. Huerta is a Caucasian male in his 40s or 50s, of medium build, just over five feet nine inches tall. He has short dark hair with white at the edges and smooth facial skin with deep ridges near his nose and mouth. He does not have pockmarks on his face. Mr. Huerta’s brother testified that Mr. Huerta did not have facial hair during the relevant period and that he would typically not be unshaven.

[20] Mr. Huerta drove a black Honda Civic with all-weather tires with silver rims, the windows were clear, and there was rust on the rear fender. He resided within a 2.7 km radius of the incidents, about 23 square kilometres.

THE ISSUES

[21] The issues on this appeal are:

1. Was the evidence of the three educators admissible and if so, for what purpose?

2. Was the jury charge adequate?

3. Were some or all of the four guilty verdicts unreasonable such that acquittals should be substituted for the convictions?

ANALYSIS

(1) ISSUE ONE: WAS THE EVIDENCE OF THE THREE EDUCATORS ADMISSIBLE AND IF SO, FOR WHAT PURPOSE?

[22] The educators saw the composite and thought they recognized the person they had seen near the school as the person in the composite. The evidence of the educators that Mr. Huerta resembled the person in the composite should not have been left with the jury for the purpose of establishing the identity of the perpetrator because:

a) The educators were not eyewitnesses to an offence, rather they thought they saw someone who resembled the image in the composite sketch. The sketch showed a person with deeply pockmarked cheeks – a feature that the appellant does not have;

b) By the end of the trial, the appellant conceded he was in the park on the day the educators saw him, and their evidence was therefore unnecessary to prove this admitted fact;

c) The educators’ evidence that the appellant was “suspicious” was highly prejudicial. He was not doing anything wrong in attending a public park, which was not a location where any of the complainants reported difficulties; and

d) The marginal relevance of this evidence to the issue of identity was outweighed by its prejudicial effect.

(2) ISSUE TWO: WAS THE JURY CHARGE ADEQUATE?

(a) Principles for assessing the adequacy of a jury charge

[23] The test in assessing a jury charge is “whether the jury was properly, not perfectly instructed”: R. v. Calnen, 2019 SCC 6, 374 C.C.C. (3d) 259, at para. 9.

[24] The question is whether there were deficiencies in the charge that caused a serious concern about the jury instruction as to how to address the evidence and the law that applies: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314; R. v. Duncan, 2015 ONCA 928, 332 C.C.C. (3d) 347, at para. 27.

[25] Misdirecting or failing to direct a jury on the use to be made of evidence is an error of law: R. v. Crawford; R. v. Creighton, 1995 CanLII 138 (SCC), [1995] 1 S.C.R. 858, at pp. 884-86.

[26] As noted by Watt J.A. in R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 53,

Where evidence of extrinsic misconduct is admitted exceptionally in a criminal jury trial, the chief work of mid-trial and final instructions is prophylactic: to confine jury use of this evidence to its permitted purpose and to abjure prohibited reasoning. These limiting instructions, whether given as mid-trials or as finals, should contain three elements:

i. a description of the evidence to which the instruction applies;

ii. a positive instruction advising the jury about the use they may make of the evidence (the permitted use); and

iii. a negative instruction directing the jury about the use they must not make of the evidence (the prohibited use). [Citations omitted.]

(b) Jury instructions regarding the use of the educators’ evidence

[27] The educators described the person they saw near the school by comparing their observations to the composite released by the police into the community, describing what he was wearing, and his demeanour.

[28] The trial judge told the jury,

If you decide that the man [the educators] observed was Mr. Huerta, you may but do not have to use the evidence of their descriptions of him in order to help you to assess whether Mr. Huerta has been properly identified as the person responsible for some or all of the crimes charged. [Emphasis added.]

[29] She went on to say,

You may, but do not have to, use the evidence of the three witnesses from the Henri Nouwen school … to help you to decide whether the Crown has proved the identity of the person alleged to have committed the crimes charged on the indictment beyond a reasonable doubt.

However, if you find that the person whom they observed was Mr. Dapena Huerta, you must not use the evidence of any of the Henri Nouwen witnesses to infer or conclude that on the mornings of October 8 and 9, 2014, Mr. Dapena Huerta had formed an intention to commit an offence, or that Mr. Dapena Huerta is a person having a character or disposition of a type that would make him likely to commit the offences charged in any count. [Emphasis added.]

[30] With respect to the educators’ evidence, the jury should have been instructed:

a) That the educators’ evidence on the issue of the similarity between the person they saw and the image in the composite was not admissible for the purpose of establishing the identity of the perpetrator;

b) J.A.’s composite was exculpatory evidence, as there were prominent pockmarks on both cheeks, which Mr. Huerta does not have;

c) The educators’ evidence that the appellant was “suspicious” should not have been admitted. At the very least, the jury should have been told this evidence was not relevant to the issue of whether the appellant was the perpetrator of any of the offences charged.

[31] The jury was not given these instructions. Without them, it is not clear the jury would have understood what use they could and could not make of this evidence.

[32] The Crown points out that counsel did not object to the charge at trial. However, a legal error remains a legal error even if counsel does not object: R. v. Forde, 2011 ONCA 592, 277 C.C.C. (3d) 1, at para. 61.

(c) Jury instructions regarding eyewitness evidence

(i) Principles for assessing adequacy of jury instructions about eyewitness evidence

[33] Trial judges must instruct juries on the general and specific dangers of eyewitness evidence. In R. v. Lewis, 2018 ONCA 351, at para. 18, Sharpe J.A., for the court, held that a new trial was warranted where a trial judge failed to direct the jury’s attention to the specific frailties posed by eyewitness evidence. He cautioned that it is not enough to give a general caution relating to eyewitness identification:

[T]he trial judge must convey to the jury the judicial experience that eye-witness evidence poses serious dangers. The trial judge must identify for the jury "any specific weaknesses" in the eyewitness identification evidence and warn the jury not only of the general dangers of identification evidence, but also of the specific dangers arising in the circumstances of the particular case.

[34] Such cautions are necessary because of the dangers posed by eyewitness identification evidence, which was explained by this court in R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, at para. 29:

Eyewitness identification is inherently unreliable. It is difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses and is difficult to discredit on cross-examination for those same reasons. Studies have shown that triers of fact place undue reliance on such testimony when compared to other types of evidence. As a result, many wrongful convictions result from faulty, albeit convincing, eyewitness testimony, even in cases where multiple witnesses identify the same person.

[35] Trial judges should instruct juries that when an eyewitness fails to mention any “distinctive feature of the accused”, the reliability of an eyewitness identification may be called into question. In R. v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at paras. 16 and 27, Epstein J.A. emphasized that,

[T]he jury must be instructed to carefully scrutinize the witness’ description of the assailant: Was it generic and vague, or was it a detailed description that includes reference to distinctive features of the suspect? In some cases, the failure to mention distinctive characteristics of a suspect is sufficiently important, especially where there is no other inculpatory evidence, to reduce the case from one of identification effectively to one of no identification.

[T]he charge did not provide the jury with adequate assistance on how to assess the reliability of the victims’ description of the robber given that their descriptions were generic and did not contain any reference to the appellant’s distinctive features … that would have been apparent given the proximity of the contact between the perpetrator and his victims. [Citations omitted; emphasis added.]

[36] When generic eyewitness description is coupled with the failure of the eyewitness to identify the accused as the perpetrator, further instruction may be warranted. In R. v. Vassel, 2018 ONCA 721, 365 C.C.C. (3d) 45, at para. 186, Watt J.A. advised,

where a witness has provided a generic description of a perpetrator, a description that generally fits the accused among others, but does not identify the accused as the perpetrator, it may be necessary for a trial judge to instruct the jury that the mere fact that the accused fits the generic description does not, on its own, permit the jury to conclude that the accused is the perpetrator. [Emphasis added.]

[37] When an eyewitness describes distinguishing features, the trial judge should instruct the jury as to the “potential importance of any significant discrepancy between the description of the [perpetrator] provided” and the person’s actual appearance: R. v. Savoury (2015), 2005 CanLII 25884 (ON CA), 200 C.C.C. (3d) 94 (Ont. C.A.), at para. 14. After doing so, the jury is entitled to decide the extent and significance of inconsistencies in the description of the perpetrator and the accused.

(ii) Application

[38] The trial judge provided a general caution on the dangers of eyewitness testimony, including inter alia that: people make honest mistakes; it may seem more reliable than it is; and it can lead to miscarriages of justice. The trial judge further instructed the jury to consider the reliability of the identification witnesses. In doing so, she told them to keep in mind questions like: “how reliable is that witness’ memory overall”; “how capable is the witness of communicating her observations”; “[t]he circumstances in which the witness made her observations”; and “under what conditions they were each able to observe the man”.

[39] In this case, the trial judge conveyed the general dangers of eyewitness evidence, but she erred by failing to identify specific weaknesses in the eyewitness identification evidence and the dangers in this case. Specifically, the trial judge did not properly instruct the jury on how to assess the reliability of the evidence of N.F. and J.C. The trial judge should have pointed out that much of their evidence was generic and that they did not mention distinguishing features. This is a badge of unreliability, as described in Jack, at para. 29.

[40] Furthermore, neither N.F. nor J.C. identified the accused in a photo line-up. Therefore, the trial judge should have instructed the jury that the mere fact that the accused fits the generic description does not, on its own, permit the jury to conclude that the accused is the perpetrator: Vassel, at para. 186.

[41] Nor did the trial judge highlight exculpatory, distinctive features. The distinguishing feature provided by J.A., the only complainant who got a good look at the perpetrator’s face, was exculpatory, as Mr. Huerta did not have pockmarks on his face. There was also other evidence in respect of the perpetrator that conflicted with Mr. Huerta’s appearance and person, such as C.O.’s testimony that the perpetrator had a moustache and C.C.’s observation that he had a Russian accent.

[42] Some of the particulars about the vehicle described by N.F. are also inconsistent with those of the car Mr. Huerta drove. While the car N.F. described was an “older Japanese car” with rust on it, the rust was not on the doors as N.F. testified, nor did it have tinted windows, winter tires, or black rims. The car he drove had all-season tires with silver rims, the windows were not tinted, and the rust was not on the doors but on the rear fender close to the tire. The trial judge should have highlighted these discrepancies: see Savoury, at para. 14.

[43] For these reasons, and in the circumstances where the central issue was identification of the perpetrator, the jury charge was inadequate in this respect.

(3) ISSUE THREE: WERE SOME OR ALL OF THE FOUR GUILTY VERDICTS UNREASONABLE SUCH THAT ACQUITTALS SHOULD BE SUBSTITUTED FOR THE CONVICTIONS?

(a) Principles for assessing whether a verdict is unreasonable

[44] In determining whether a verdict is unreasonable, s. 686(1)(a)(i) of the Criminal Code, R.S.C., 1985, c. C-46, provides that an appellate court must determine whether on the facts presented to the trier of fact, a jury properly instructed, could convict the accused.

[45] The issue is not whether the verdict was possible but whether it was reasonably available on the evidence. A verdict is unreasonable if “a properly instructed jury, acting judicially could not have come to that verdict”: R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 30.

[46] To determine whether a verdict was reasonable, an appellate court must not merely ask whether twelve properly instructed jurors, acting judicially, could reasonably have come to the same result, but do so through the lens of judicial experience, which serves as an additional protection against an unwarranted conviction: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, 143 C.C.C. (3d) 1, at para. 39.

[47] Section 686(1)(a)(i) of the Criminal Code provides for limited appellate review of the sufficiency of the evidence, as the court owes deference to the jury who saw and heard the evidence. However, the review contemplated under s. 686(1)(a)(i) is not limited to a determination of whether there was any evidence to support the conviction.

[48] Where the verdict is said to be unreasonable or not supported by the evidence, the appellate court must engage in a limited weighing of the evidence, independently examine and assess the evidence adduced at trial, and reach its own conclusion: R. v. Hafizi, 2019 ONCA 2, 373 C.C.C. (3d) 264, at para. 27; R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 27-28. An appellate court should set aside a conviction if the verdict cannot be supported by the evidence: see Criminal Code, s. 686(1)(a)(i).

[49] In R. v. Ellis, 2008 ONCA 77, at paras. 4-5, this court held the conviction was unreasonable because the evidence was too generic and insufficient to establish identity. Although the accused was arrested up the street from where the robbery took place, the imitation gun found did not match the description given by the salesperson who was held at gunpoint (although there were some similarities), only a generic description of the assailant was given (describing him as a tall black man wearing a dark jacket, dark coloured hat, and dark pants), and the description of the hat did not match the description given by the salesperson. There was therefore insufficient evidence to establish guilt on the basis of identification evidence, and an order was made quashing the conviction and entering an acquittal.

[50] Similarly, in Quercia, at p. 472, this court substituted acquittals for the convictions where the appellant did not fit the description given at trial.

The victim's opportunity to observe and her determination to mentally record the appearance of her attacker magnify the significance of the marked differences between her initial recollection of what her assailant looked like and the actual appearance of the appellant. I refer particularly to the pock-marked facial skin and the askew left eye. On the victim's evidence, these inconsistencies cannot be explained by difficulties inherent in her opportunity to see her attacker or in her ability to mentally record the appearance of her attacker. Nor did the victim testify that her initial description was in error, although she suggested that the prominence of these two features was being over-emphasized by counsel for the appellant. These two differences remain totally unexplained. One must conclude that, in at least two vital respects, the appellant quite simply does not fit the description initially given by the victim and verified by her as accurate at trial. [Emphasis added.]

(b) Application

[51] In this case, most of the evidence regarding the perpetrator’s physical description was generic. All six complainants described the perpetrator as Caucasian, most said he was of medium build, between five feet nine inches and six feet tall, and five of the six said he was in his 40s or 50s. All of the complainants whose complaints resulted in convictions described him as having greyish or salt and pepper hair and sporting sunglasses.

[52] However, three specific distinctive features noted were inconsistent with Mr. Huerta’s description: (1) he had no prominent pockmarks on his face; (2) he did not speak with a Russian accent; and (3) he did not sport a moustache.

[53] The same was true of Mr. Huerta’s car. While he did drive an older Japanese car: (1) the windows were not tinted; (2) his vehicle had all-weather not winter tires; (3) it had silver rims not black rims; and (4) the rust spots were in different places on the car than described by N.F.

[54] The counts involving the complainants who described the perpetrator as having a Russian accent and sporting a moustache resulted in acquittals. J.A.’s complaint resulted in a conviction, although she described the perpetrator as having distinctive pockmarks, which she helped depict in the composite.

[55] The Crown concedes, in paragraph 40 of its factum, that the distinctive features described by some complainants that do not correspond to Mr. Huerta’s physical appearance are in all likelihood the reason for the acquittals on many of the charges.

[56] I will now explain why all four convictions should be substituted with acquittals.

(i) Two convictions in respect of J.A.

[57] Among the three complainants whose complaints resulted in conviction, only J.A. said that she was able to get a good look at the perpetrator.

[58] The composite prepared with the participation of J.A. shows very prominent pockmarks on both cheeks.

[59] The two charges of sexual interference and sexual assault involving J.A. must result in acquittals, as the lack of facial pockmarks is both significant and exculpatory. Moreover, the only other evidence proffered by J.A. was generic: that the perpetrator was Caucasian, five feet ten inches tall, of medium build, and in his late 40s to early 50s. She made no observations about a car.

[60] While some of the generic evidence J.A. provided is similar to generic evidence of other witnesses, J.A. described the perpetrator as having distinctive features, which Mr. Huerta does not have. The cumulative effect of the following facts leads to the conclusion that there is insufficient evidence upon which the jury could have been satisfied of Mr. Huerta’s guilt beyond a reasonable doubt and convicted on the charges of sexual interference and sexual assault of J.A.:

a) The composite was prepared with the assistance of J.A. in her presence;

b) J.A. testified that she did not recall providing the forensic artist with different descriptions than she had described at trial;

c) The composite has distinctive pockmarks, a feature that dominates the composite;

d) J.A., unlike the other complainants in this proceeding, was approached by the perpetrator from the front and she said she got a good look at him;

e) Mr. Huerta does not have any pockmarks on his cheeks.

[61] An order is therefore made quashing the convictions of sexual interference and sexual assault of J.A. and entering acquittals on those two counts.

(ii) Convictions in respect of N.F. and J.C.

[62] The convictions in respect of N.F. and J.C. rest largely on generic evidence: that is, that the perpetrator was a Caucasian male, in his 40s to 50s, about five feet ten inches to five feet eleven inches tall, with greyish hair, and wearing sunglasses.

[63] Both N.F. and J.C. testified that they did not get a good look at the perpetrator. N.F. testified that she only saw the perpetrator in profile and never from closer than one metre away. J.C. testified that she did not get a good look at the perpetrator.

[64] Neither was able to identify Mr. Huerta from a photo line-up.

[65] Moreover, some of the features of the “older Japanese car” described by N.F. are not consistent with the car Mr. Huerta was driving. The rust was not on the doors as N.F. testified, nor did it have tinted windows, winter tires, or black rims. It had all-season tires with silver rims, the windows were not tinted, and the rust was not on the doors but on the rear fender close to the tire. Moreover, a little more than a month after the incident, N.F. reported to the police that she had seen the same car which was “very recognizable to [her]” but it belonged to another person; N.F. conceded that there could have been another, very similar car in the area on the day of the incident.

[66] Moreover, cross-count similar fact evidence was admitted on the premise that the same person likely committed all of the offences charged.

[67] Where similar fact evidence is allowed, the trier of fact may use the evidence from one count on which there was an acquittal to assess an accused’s liability on other counts: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 79; R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 66-72.

[68] This evidence however, is exculpatory in many respects, as it attributes distinctive features to the perpetrator not shared by the appellant, such as a moustache, Russian accent, and pockmarks.

[69] For these reasons, looking at all of the evidence, there is insufficient evidence upon which a reasonable jury could be satisfied beyond a reasonable doubt that the appellant was the perpetrator of the offences involving N.F. or J.C. I would therefore enter acquittals on those counts as well.

CONCLUSION

[70] For the above reasons, I would substitute acquittals on each of the four counts on which the appellant was convicted.

Released: January 30, 2020 (“G.P.”)

“J.A. Thorburn J.A.”

“I agree. G. Pardu J.A.”

“I agree. L.B. Roberts J.A.”