



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. Pierres 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 Crowns 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 girlfriends 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 drivers 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 neighbours
    backyard. He was cornered at a fence on the neighbours 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. Pierres 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. Pierres 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, thats 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. Pierres 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 neighbours 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 Im 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. Pierres credibility at trial

[25]

Issues were raised by the defence with respect to Mr. Pierres
    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 cousins 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. Pierres evidence that they allege undermined his credibility and the
    reliability of his identification of the appellants:

·

Mr.
    Pierres 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. Pierres 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.
    Pierres 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. Pierres evidence at trial and
    statements made at the preliminary inquiry with respect to whether Mr. Renous
    had ever visited Mr. Pierres 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 Crowns case, Mr. Charles brought a motion for a
    directed verdict of acquittal. He argued that Mr. Pierres 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. Pierres
    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. Pierres
    credibility and reliability on that issue should be left with the jury. In his
    view, if believed, Mr. Pierres 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)
, 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. Pierres 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. Pierres 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. Pierres 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 girlfriends 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. Pierres testimony that he had only
    a modest income from a clothing store he was operating in Montreal. Despite Mr. Pierres
    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] 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. Pierres 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. Pierres 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. Pierres 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. Pierres
    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. Pierres 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. Pierres 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. Pierres 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. Pierrewho was no doubt contemplating deathresponded 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. Pierres 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. Pierres 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. Pierres
    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. Pierres general character rather than the trustworthiness of
    his testimony.

·

He
    discounted troubling inconsistencies in, and the implausibility of, Mr. Pierres
    evidence because Mr. Pierre had not admitted to lying under oath.

·

He
    did not balance Mr. Pierres credibility problems against the importance of his
    evidence to the Crowns case.

·

Based
    almost exclusively on Mr. Pierres 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 Crowns
    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 laws 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 judges 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. Pierres evidence was central to the Crowns case and he then
    went on to consider the problems with Mr. Pierres credibility. The trial judge
    acknowledged Mr. Pierres 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. Pierres 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.
    Pierres prior convictions, highlight the numerous inconsistencies in Mr.
    Pierres evidence and caution the jury to carefully consider the reliability of
    Mr. Pierres 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. Pierres testimony were
    readily apparent.

[71]

Nor did the trial judge fail to weigh the concerns regarding Mr.
    Pierres testimony against the centrality of that evidence to the Crowns case.
    The trial judge was simply of the view that, despite the importance of Mr.
    Pierres testimony to the Crowns 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 Crowns submission
    that Mr. Pierres credibility problems were not of such a nature that a
Vetrovec
warning was mandatory. The trial judges 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 judges 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.
    Kreslins 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 judges 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. Pierres 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. Pierres identification of the
    appellants as the persons whom he saw
, including assessment of the
    entire identification narrativefrom Mr. Pierres purported statements to Mr.
    Ditta at the scene of the attack to the handwritten and spoken identification
    procedures conducted in hospital, which were videotapedand the manner in which
    the identification process, in particular the photograph line-ups, was
    conducted.

[83]

The trial judge went through Mr. Pierres 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.
    Pierres 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. Pierres identification of the appellants, the judge
    reminded the jury of several inconsistencies and weaknesses in Mr. Pierres
    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. Pierres 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. Pierres 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. Pierres 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.5


