



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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 complainants 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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Hird, 2021 ONCA 881

DATE: 20211210

DOCKET: C65063

Hoy, Benotto and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dylan Hird

Appellant

Janani Shanmuganathan and Owen Goddard,
    for the appellant

Jeremy D. Tatum, for the respondent

Heard: November 17, 2021

On appeal from the conviction entered on
    September 28, 2017, and the sentence imposed on February 20, 2018, with reasons
    reported at 2018 ONSC 1152, by Justice Ian F. Leach of the Superior Court of
    Justice, sitting with a jury.

REASONS
    FOR DECISION

[1]

After an 11-day trial, the appellant, along with
    two other co-accused, was convicted of various offences related to the
    trafficking and sexual assault of a 15-year-old complainant. The appellant was
    sentenced to nine years in custody, along with a DNA order under ss. 487.04 and
    487.051(1) of the
Criminal Code
, an order under s. 490.013(2.1) of the
Code
to comply with the
Sex Offender Information Registration Act
for life, restrictions on his internet use pursuant to s. 161 of the
Code
,

as well as prohibitions against possessing weapons and contacting the
    complainant.

[2]

The complainant testified that
one
of the people involved in her trafficking and who
    assaulted and sexually assaulted her was an individual with the street name Taffa.
    The complainant eventually identified the appellant as Taffa.

[3]

The appellant appeals on the ground that the
    trial judge erred in his charge to the jury with respect to identification
    evidence and how he dealt with the evidence regarding the polices failure to
    conduct a photo line-up.

[4]

For the reasons that follow, we dismiss the appeal.

BACKGROUND

[5]

The facts of the crimes are not in dispute.

[6]

The appellant does not challenge that the
    complainant was 15 at the material time, or the jury findings about how she was
    deceptively recruited, exploited, and then abused for days before escaping from
    the hotel room where the offences occurred.

[7]

The appellant, in particular, does not dispute
    the role played by the person referred to by the complainant as Taffa in the
    ordeal. The complainant alleged that Taffa physically blocked the door when the
    complainant sought to leave the hotel room, threatened her, assaulted her, and
    sexually assaulted her on several occasions. The complainant eventually managed
    to escape the hotel and contact police.

[8]

She identified the profile picture of a person
    named Stay Humble as Taffa in a printed list of a co-accuseds Facebook
    friends. Eventually, with the assistance of further identification evidence
    from the complainant, the police linked Taffa to the appellant.

[9]

Almost six months after the offence, the
    appellant was arrested and charged with various offences relating to the
    complainants confinement, assault, sexual assault and trafficking.

ANALYSIS

[10]

While the appellants Notice of Appeal raises
    issues with respect to both the conviction and sentence, counsel for the
    appellant clarified that the appellant now limits his appeal to the trial
    judges charge to the jury on identification evidence and the trial judges
    treatment of the evidence of the polices failure to conduct a photo line-up.

Did the Trial Judges err in his charge to
    the jury on the identification evidence?

[11]

The review of a trial judges charge is a
    functional exercise. As this court stated in
R. v. Badgerow
, 2019 ONCA
    374, 146 O.R. (3d) 35, at para. 17:

Appellate review of the adequacy of a jury
    instruction requires a functional assessment. The court asks whether the
    charge, read as a whole in the context of the specific case, properly equipped
    the jury to decide the case based on the application of the applicable legal
    principles to the evidence. [Citations omitted.]

[12]

In his charge, the trial judge described the
    threshold for identification as follows:

For any particular accused to be found guilty
    of an offence, Crown Counsel must prove beyond a reasonable doubt that the
    someone in question  that is, the person who engaged in certain conduct said
    to constitute an offence charged against that particular accused  was, in
    fact, the particular accused who is charged with the offence.

[13]

The appellant argues that the trial judge erred
    in instructing the jury by conflating the two steps required in the
    identification process: first, it had to be established that Taffa was indeed
    the person involved in the alleged crimes, and second, that the appellant was
    Taffa. The appellant takes no issue with the jurys finding with respect to the
    first step. However, the appellant argues that the trial judge failed to
    clarify for the jury what had to be proven beyond a reasonable doubt at the
    second step.

[14]

According to the Crown, the jury drew inferences
    that were available to it from the record, including that the appellants phone
    number was the same as Taffas, and that the appellant conceded that an image
    of Taffa, captured in a still-shot from a music video, appeared to be an image
    of him.

[15]

We do not accept the submission that the trial
    judge failed to instruct the jury on the importance of considering not simply
    the identification of Taffa as the alleged assailant but also that the
    appellant was Taffa. The trial judge made it clear that the identification of
    the appellant as Taffa had to be established beyond a reasonable doubt.

[16]

The jury was repeatedly cautioned about general
    and specific frailties related to the identification evidence. For example, the
    trial judge explained:

You must be very cautious about relying on
    eyewitness testimony to find a particular accused guilty of any criminal
    offence charged. In the past, there have been miscarriages of justice, and
    innocent persons have been wrongfully convicted, because eyewitnesses have made
    honest mistakes in identifying the person or persons whom they saw committing a
    crime or crimes. Eyewitness identification may seem more reliable than it
    actually is because it is given by a credible and convincing witness who
    honestly, but perhaps mistakenly, believes that the accused is the person whom
    he or she saw committing an offence in question.

[17]

In his charge, the trial judge reviewed the
    identification evidence in relation to all the accused, but focused on the
    appellant. He stated, [c]learly, I think, the most significant identity issues
    in this case relate to whether the perpetrator known and described principally
    as Taffa was, in fact, the accused Mr. Hird.

[18]

This identification evidence consisted primarily
    of the complainants testimony. In his charge, the trial judge reviewed her
    testimony in detail, including her inconsistencies and memory lapses. He also
    reviewed the frailties with her evidence raised by the appellant at trial, namely
    that the complainant consumed drugs, including methamphetamine, during the
    period of the alleged crimes.

[19]

The complainants identification evidence was
    corroborated by other evidence. For example, the appellants phone number and the
    image of him in the music video.

[20]

Additionally, the draft jury charge was shared
    with defence counsel. Defence counsel did not object to the charge in relation
    to the identification evidence, aside from the issue of the police line-up,
    addressed below. While not determinative, the failure of the defence to object
    to the charge when they had an opportunity is relevant in assessing the
    adequacy of the jury charge:
R. v. Bailey
, 2016 ONCA 516, 339 C.C.C.
    (3d) 643, at para. 56.

[21]

Finally, the appellant argues that the trial
    judge should have raised the difficulties of cross-racial identification in his
    charge to the jury. There was no suggestion in this case that the complainant
    had any difficulty identifying the appellant as a result of race. Further,
    there is nothing in the record on the demographic make-up of the jury that
    would raise this as an issue. Absent specific evidence of cross-racial
    identification concerns, there is no basis as a general matter to conclude the
    jury would need to be instructed on the issue of cross-racial identification.

[22]

We find no error with respect to the trial
    judges charge on identification.

Did the trial judge err in how he dealt with
    the evidence regarding the polices failure to conduct a photo line-up?

[23]

Defence counsel wished to cross examine a police
    witness on the polices failure to conduct a photo line-up containing a known
    image of the appellant.

[24]

The police witness stated that a photo line-up
    was not used because the police had no doubt that the appellant was the
    individual identified by the complainant as Taffa.

[25]

The basis for the police witness confidence in
    the identification of the appellant was a statement made to the police by the
    appellant after his arrest. This statement was subsequently ruled inadmissible by
    the trial judge after a
voir dire
on voluntariness.

[26]

As the Crown could not rely on the appellants
    statement, the trial judge accepted the Crowns submission that it would be
    unfair to permit defence counsel to cross-examine the police witness on this
    point. Allowing the line of questioning could have undermined the integrity of
    the investigation even though police had grounds to conclude the investigation at
    that time.

[27]

There was significant discussion of this point
    between counsel and the trial judge. In the end, the trial judge permitted
    defence counsel to cross-examine the police witness on why the police had not
    conducted a photo line-up prior to the appellants arrest, but not with respect
    to the period after the statement by the appellant.

[28]

The trial judge provided a mid-trial jury
    instruction on this issue. He instructed the jury:

[T]o proceed on the basis that the police had
    reasons at the time for not employing the police photo lineup procedure, but
    you are not permitted to hear those reasons, speculate as to what those reasons
    were, or in turn, speculate as to whether those unknown reasons for not using
    that procedure after Mr. Hirds arrest were sufficient or not.

[29]

In the end, defence counsel did not continue to
    cross-examine the police witness on this point.

[30]

In our view, the trial judge committed no error
    in relation to the photo line-up. He addressed this issue with fairness to the
    Crown and the defence in mind.

DISPOSITION

[31]

There was no error by the trial judge in his
    charge to the jury with respect to the identification evidence or in how he
    dealt with the evidence regarding the photo line-up. Accordingly, the appeal is
    dismissed.


Alexandra
    Hoy J.A.



M.L.
    Benotto J.A.

L. Sossin
    J.A.


