



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Virgo, 2016 ONCA 792

DATE: 20161027

DOCKET: C59092

Watt, Lauwers and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roderick Virgo

Appellant

Mark C. Halfyard and Breana Vandebeek for the appellant

Chris Chorney, for the respondent

Heard: April 14, 2016

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

B
.W. Miller J.A.:

Overview

[1]

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

[2]

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

[3]

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

[4]

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

[5]

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

Issues

[6]

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

Analysis

[7]

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

[8]

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

[9]

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

[10]

I reject the Crowns submission for two reasons.

[11]

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

[12]

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

[13]

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

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

[14]

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

[15]

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

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

[16]

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

[17]

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

(i)       The chaos of the bar fight;

(ii)      The poor lighting;

(iii)     The speed at which events transpired;

(iv)     The stress the complainant was under;

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

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

(vii)    The
    complainants lack of prior dealings with the appellant;

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

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

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

[18]

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

Disposition

[19]

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

[20]

I would allow the appeal and order a new trial.

Released: DW  OCT 27 2016

B.W. Miller J.A.

I agree. David Watt
    J.A.

I agree. P. Lauwers
    J.A.


