



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C.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    shall not be published in any document or broadcast or transmitted in any way.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. Chafe, 2019 ONCA 113

DATE: 20190215

DOCKET: C63827

Sharpe, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Chafe

Appellant

Scott Hutchison, for the appellant

Sarah Shaikh, for the respondent

Heard: February 7, 2019

On appeal from the conviction entered on January 20, 2017
    and the sentence imposed on May 16, 2017 by Justice Gerald E. Taylor of the Superior
    Court of Justice, sitting with a jury.

Benotto J.A.:

[1]

The appellant was convicted of sexual assault against a friend of his
    and of his long-time girlfriend. He appeals his conviction on the basis that
    the trial judge erred in law when instructing the jury on recognition evidence
    and failed to provide the jury with guidance about assessing his reaction when
    his girlfriend confronted him about the allegations.

[2]

For the following reasons, I would allow the appeal.

FACTS

[3]

The appellant and A.M. met in high school. They began dating in 2004
    while at Dalhousie University. There, they met the complainant. The three
    became friends. Eventually they all moved to Toronto and remained friends. The
    complainant and A.M. were particularly close, and the complainant was fond of
    the appellant.

[4]

On July 12, 2012 the appellant, A.M. and the complainant, together with
    other friends from university, went to a wedding in Kitchener. The three
    friends drove from Toronto to Kitchener with another couple and booked into the
    Conestoga College residence. The appellant, A.M. and the complainant shared a
    suite which had two bedrooms. The appellant and A.M. stayed in one bedroom, the
    complainant in the other. There was also small shared communal living space and
    bathroom. The couple they had driven with stayed in another suite in the same
    residence.

[5]

The complainant was drinking alcohol before, during and after the
    wedding reception. She testified that on a scale of drunkenness she was a 7 out
    of 10. A.M. thought it was higher and put her friend at an 8 on the scale. The
    complainant agreed that people seeing her at the reception could tell she had
    been drinking quite a bit. The appellant testified that she was drinking wine
    straight from the bottle and spilled wine on his new tailored suit. All three
    left the reception together around 11 p.m. and began to make their way back to
    the residence. It took a long time to walk back to the residence because the
    complainant was stumbling. At one point she stopped on the side of the road to
    urinate.

[6]

Once at the residence the appellant testified that he changed out of his
    clothes which were wet with the wine and put on boxer shorts and a t-shirt. He
    and A.M. went to bed. He did not have sex with A.M. because red wine made him
    unable to achieve an erection. He felt nauseous. He got up from bed and was
    sick in the washroom. On his way to the washroom, he saw several friends in the
    common room. A.M. testified that she heard 4 or 5 people including the
    distinctive voice of the person they had driven to Kitchener with. Other
    witnesses testified that several wedding-goers had gone back to the residence
    to continue the party. Some were going from room to room.

[7]

The complainant testified that, once back at the residence, she went to
    bed and fell right asleep. At some point during the night, she woke up to find
    a man standing in the door of her bedroom masturbating. She told him to fuck
    off, threw a pillow at him and went back to sleep. In her initial statement to
    the police she said the man was wearing a suit. It was dark and the interaction
    lasted a couple of seconds. She identified the man as the appellant.

[8]

Later that night, she felt someone in bed behind her stroking his penis.
    The person touched her buttocks and ejaculated on her. She did not see the man
    in bed with her but assumed  based on the earlier encounter  that it was the
    appellant. The man then left the room and shortly after returned. She heard the
    clicking sound of a camera. After a while, the complainant got out of bed to go
    to the bathroom. She saw a camera in the bathroom but there were no pictures on
    it. She testified that she saw the appellant sitting in the common area wearing
    a t-shirt and boxer shorts. She asked him what was wrong with him and returned
    to her bedroom. By this time, the sun was starting to come up.

[9]

The next morning, the complainant, A.M. and the appellant met up with
    two other couples for breakfast and drove back to Toronto. Nothing was said
    about the events of the night before and everyone acted normally.

[10]

Back
    in Toronto, the complainant told her mother and another friend what had happened.
    She then told A.M. that something really bad happened between her and the
    appellant. At trial the complainant said she did not tell A.M. the details of
    what happened. A.M. testified that she could not recall the words the
    complainant used but was left with the impression that the appellant had
    sexually assaulted her.

[11]

The
    complainant decided not to go to the police. She changed her mind two years
    later during the extensively publicized sexual assault trial of Jian Ghomeshi
    and eventually went to the police in October 2014. A.M., however, confronted
    the appellant immediately.

[12]

After
    speaking to the complainant, A.M. ran to the apartment she shared with the
    appellant, packed her bags and prepared to leave. She confronted the appellant
    saying that her friend told me what you did. She could not recall his exact
    response, but it was generally that he did not remember. Within five minutes
    she left and she later moved out.

[13]

Over
    the next four months A.M. spoke by phone with the appellant. She testified that
    she asked him if he had grabbed the complainant. A.M. could not recall his
    exact words in response, but she had the impression that he was acknowledging
    the allegation. She became convinced that he had done so. The appellant
    testified that, if he said that he did not remember, he was trying to avoid
    confrontation but, in his mind, it was a denial.

[14]

The
    complainant went to the police in October 2014 and the trial took place in
    2017.

THE JURY CHARGE

[15]

The
    trial judge prepared a draft charge which he provided to counsel in advance.
    There were no objections to the charge.

[16]

The
    trial judge told the jury that the issue in the case was whether the events
    took place and whether the appellant committed them. Since the complainant did
    not see the person in bed with her, the jury was given the standard instruction
    on circumstantial evidence. The jury was also told that the identity of the
    person standing in the doorway masturbating was important. As to identity, the
    trial judge said:

An important part of the Crown's evidence in this
    case is the identification of [the appellant] by [the complainant] as the
    person standing in the door of the bedroom masturbating. You must be very
    cautious about relying on eyewitness testimony if you find [the appellant] guilty
    of sexual assault. In the past, there have been miscarriages of justice.
    Innocent persons have been wrongfully convicted because eyewitnesses have made
    honest mistakes in identifying the person whom they saw committing a crime. 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 who they saw on a particular occasion.
    Identification evidence is an expression by a witness of their belief or
    impression. It is quite possible for an honest witness to make a mistaken
    identification. Honest people do make mistakes. An apparently convincing
    witness can be mistaken. Little connection exists between the great confidence
    of a witness and the correctness of her identification and the accuracy of the
    identification. Confidence and accuracy are two different things. Even a very
    confident witness may be honestly mistaken or entirely wrong about her
    identification.

When you decide how
    much or little to believe of or rely upon the identification evidence,
    everything that I told you earlier  which I haven't told you yet, but I will 
    about assessing evidence, applies to the identification by [the complainant] of
    [the appellant] as the person standing in the doorway to her bedroom. In
    addition, you should keep in mind several factors that relate specifically to
    the eyewitness identification of [the appellant] as the person standing in the
    doorway to the bedroom. It was dark in the bedroom. [The complainant] had just
    awoken from sleep. [The complainant] had consumed a considerable amount of
    alcohol earlier in the evening. [The complainant] observed the person in the
    doorway for three or four seconds and there was no light behind the person. [The
    complainant] could not describe what the person standing in the doorway was
    wearing, although in a statement to the police in November 2014, she said that
    the person in the doorway was wearing clothes that he had worn to the wedding
    reception.
On the other hand, [the appellant]
    was known to [the complainant]. Identification of a known person is different
    than identification of a stranger. Also [the complainant] was aware that [the
    appellant] was the only male staying in the residence suite that night.

[Emphasis added.]

ISSUES

[17]

The
    appellant raises two issues with respect to the jury charge. The first is based
    on what was said, the second is based on what was not said. The appellant
    submits first that the charge on identity was wrong in law and second that the
    trial judge erred by not giving the jury guidance on how to assess the evidence
    of the appellants reaction when confronted by A.M.

[18]

The
    respondent submits that the trial judge properly charged the jury on the
    frailties of identification evidence and explained the principles of assessing
    evidence. The evidence of the appellants reaction to the allegations by A.M. was
    properly before the jury and no specific instruction was necessary. Further,
    the appellant raised no objections at trial and approved of the final jury
    instructions.

ANALYSIS

[19]

One
    of the strengths of the jury system is that lay persons, those outside of the
    justice system, are called on to assess the evidence. In that capacity they
    bring their collective everyday experiences to determine the credibility and
    reliability of witnesses. Indeed, jurors are routinely told to use and rely on
    their common sense, in other words, the means by which they make decisions and
    come to conclusions in their everyday lives.

[20]

In
    some situations, however, a straightforward common sense analysis can be
    misleading and result in a wrongful conviction. In these situations, lay
    persons need to be instructed about deceptively influential types of evidence
    that those in the justice system are aware of.

[21]

Two
    types of evidence that fall into this category are at issue here: eyewitness
    identification and the accuseds reaction to accusations.

[22]

Eyewitness
    identification is very persuasive for a lay person. The law has learned  and
    jurors are told  about the honest but mistaken belief that may lead to
    wrongful conviction. Recognition evidence is, within that category, even more
    persuasive. A juror may understandably jump to the conclusion that, because the
    person was known to the witness, the identification is reliable.

[23]

Likewise,
    evidence of a persons reaction to an accusation may seem conclusive to a lay
    person. If an accused did not deny an allegation, it may be alluring to
    conclude that the accusation was correct. Here too, the jurors need to be given
    more than the standard instruction with respect to the assessment of evidence.

[24]

These
    categories of evidence require the trial judge to educate the jury about the
    experience that those in the justice system have gained from relying on
    assumptions that may be deceptively influential. As the appellants counsel
    submitted, the trial judge needs to help the jury learn the lessons that the
    law has learned at great cost.

[25]

I
    will address both categories of evidence in the context of the evidence and trial
    judges charge to the jury.

Identification Instruction

[26]

The
    case against the appellant rested entirely on identity. The identity rested
    entirely on the complainants recognition of the appellant as the man in the
    doorway.

[27]

The
    trial judge correctly instructed the jury with respect to identification
    evidence. He cautioned about guarding against honest but mistaken belief. He
    referred to the frailties in the complainants evidence: she had just woken up;
    she had consumed a lot of alcohol; she saw the man for 3-4 seconds; she
    initially told the police the man was wearing the suit he wore to the wedding.

[28]

The
    respondent submits that this instruction properly cautioned the jury about the
    dangers inherent in eyewitness identification. I do not agree because the trial
    judge added the following sentence to the end of his instruction on
    identification:

On the other hand, [the appellant] was known to the
    complainant. Identification of a known person is
different than identification of a stranger
. [Emphasis added.]

[29]

This sentence effectively negated the identification instruction and is
    wrong in law. Recognition evidence is not different from identification
    evidence. It is subject to the same frailties and the same risks. This is
    significant where, as here, a jury may be quick to assume that, because the
    witness knows the person, the identification must be correct. A trier of fact
    could intuitively place undue reliance on the evidence of recognition without a
    clear instruction outlining the frailties. The trier of fact, whether judge or
    jury, must approach the evidence of recognition with the same caution as
    identification evidence and the evidence must have the same level of reliability.

[30]

Even though the witness knows the person identified, the time to
    observe, the circumstances of the observation, and the conflicting evidence
    constitute factors which the trier of fact must grapple with in order to
    determine reliability. The usual dangers of eyewitness identification exist in
    a case of alleged recognition: see
R. v. Miller
(1998), 131 C.C.C. (3d) 141 (Ont. C.A), at para. 27.

[31]

With
    respect to recognition evidence, this court said in
R. v. Olliffe,
2015
    ONCA 242, 322 C.C.C. (3d) 501, at para. 38:

Triers of fact are entitled to take into account whether the
    witness is acquainted with the accused when assessing the reliability of the
    identification evidence. Where a witness is known to the accused, the testimony
    identifying the accused is sometimes referred to as recognition evidence.

[32]

It
    is crucial to remember, though, that recognition evidence is a form of
    identification evidence. The same level of assessment of the evidence must
    apply. Continuing on in
Olliffe
at para 39:

It must be remembered, however,
    that recognition evidence is merely a form of identification evidence. The same
    concerns apply, and the same caution must be taken in considering its
    reliability as in dealing with any other identification evidence.

[33]

By
    describing recognition evidence as different from identification evidence, the
    trial judge gave the wrong instruction. This error was compounded by the
    sentence immediately following this section in the charge when he said:

Also [the
    complainant] was aware that [the appellant] was the only male staying in the
    residence suite that night.

[34]

This was misleading. While the appellant may have been the only male
    staying in the particular suite, there was evidence that other males had come
    to the residence after the wedding to continue the party and were occasionally
    wandering around. The judges comment artificially bolstered the identification
    evidence by incorrectly implying that the man in the doorway had to be the
    appellant because he was the only male staying in the suite.

The appellants reaction to the accusations

[35]

I turn now to the second issue with respect to the jury charge.

[36]

Common
    sense may lead a juror to the conclusion that someone who does not vehemently
    deny an accusation must be guilty of the charge.

[37]

The
    appellant was confronted by A.M. while she was packing to leave their
    apartment. The confrontation lasted less than five minutes. She testified that
    she said that the complainant told me what you did and that the appellant
    said something like, I am afraid I did that and that he did not remember.
    The appellant testified that he said, what are you talking about.

[38]

In
R. v. Levert
(2001), 159 C.C.C. (3d) 71 (Ont. C.A.), this court held
    that evidence of an accuseds reaction to allegations is of limited if any
    probative value. The inferences rest on assumptions about how a normal person
    would react and judicial experience has taught us that this is often wrong. In
Levert
Rosenberg J.A. said, at para. 27:

The probative value of this type of
    evidence is highly suspect. In the two recent cases of Susan Nelles and Guy
    Paul Morin use of the accuseds demeanour was found to have played a part in
    wrongful prosecution. The
Report of The Commission on Proceedings Involving
    Guy Paul Morin
, 1998contains an extensive discussion of the dangers of
    admitting such demeanour evidence. The expert and other evidence introduced at
    the Commission strongly suggests that this evidence can be highly suspect and
    should be admitted at a criminal trial with caution. Perceptions of guilt based
    on demeanour are likely to depend upon highly subjective impressions that may
    be difficult to convey to the jury and in any event the significance of the reaction
    will often be equivocal.

[39]

The respondent submits that the reaction of the appellant was not
    demeanour evidence. However, in my view the same considerations apply. And in
    the cases referred to by this court in the above excerpt, it was the reaction
    of the accused that played a part in the wrongful prosecution.

[40]

The reaction of the accused to an allegation rests on an assumption of
    what is a normal reaction. In
R. v. J.S.W.,
2013
    ONCA 593, 301 C.C.C. (3d) 252, the appellants conviction was overturned because
    the trial judge relied on his reaction to the charge. However, the appellant was
    not told where, when or how he was alleged to have fondled the complainant. Tulloch
    J. A. speaking for this court said, at para 47:

[The appellants]
    failure to make an unequivocal denial without knowing the specifics of the
    allegation should not have been automatically construed as evidence that his
    testimony was incredible.

And at para. 49:

To completely discount the entire
    evidence of an accused because he did not immediately and unequivocally deny a
    vague allegation constitutes an error of law on the part of the trial
    judge:
Levert
, at paras. 27-28.

[41]

The respondent submits that this is not a
J.S.W.
situation because in that case the response of the accused was the sole
    basis for conviction by the trial judge and here there was other evidence on
    which to base the conviction.  I do not agree. The appellants response to the
    accusations by A.M. formed a significant part of the Crowns case.
Crown
    counsels closing submissions demonstrate this. When speaking about the
    confrontation by A.M. the trial Crown said:

It was in this moment that the
    circumstances cried out for a denial. He did not deny it.

[]

Even on his own evidence he also
    did not ever deny it. He always relied on his lack of memory of the incident.
    That does not assure your life partner of your innocence. It makes no sense
    that he did not deny sexually assaulting the complainant if he did not do it.

[42]

In
    fact, the appellant could not deny it because he did not know what it was.
    The appellant was given no details about the allegations because A.M. did not
    know the details of the allegations. And A.M. did not know the details of the
    allegations because the complainant had not told her. She just had the
    impression that the appellant had been sexually inappropriate. The principles
    in
J.S.W.
apply.

[43]

The
    Crowns closing also referred to the
evidence of A.M. that she
    asked the appellant if he grabbed the complainant:

A.M. asked [the appellant] if he grabbed [the
    complainant] and he agreed that he had. He said, I feel like a monster and I
    dont know why youre even still talking to me.

[44]

This is inaccurate. First, the appellant testified that he did not say
    that he had grabbed the complainant, and instead he said, you must think I am
    a monster. Second, and more importantly, the complainant testified that she
    never used the word grab. It was never part of her accusation against the
    appellant. This in turn diminished the probative value of A.M.s evidence that
    she asked the appellant if he grabbed [the complainant].

[45]

I make no comment as to whether this evidence was even admissible in
    the first place. Given that it was admitted, it was incumbent on the trial
    judge to advise the jury of the dangers of relying on it. This would include an
    instruction that they should place no weight on his response to an accusation
    when he was given no details; that there is no normal way for a person to
    respond when faced with an accusation of wrongdoing; that failure to recall is
    not an admission; and that they should not rely on A.M.s impression of what
    his reaction meant in the face of his explanations. In short, the admonition
    from
Levert
should have been used to instruct the jury with
    respect to this evidence.
Without these directions, the jury was
    left with the suggestion that the appellant had confessed to the charge.

[46]

The respondent submits that trial counsel had the opportunity to vet
    the jury charge in advance and
did not request a change to the
    recognition evidence error, nor seek a broader instruction on the reaction of
    the appellant. This fact does not save the errors of law contained in this
    charge. As this court held in
R. v. Pintar
(1996), 30 O.R. (3d) 483
    (C.A.), at p. 519:

That is not to say, however, that
    counsels silence will prove fatal in all such cases. Failure to object does
    not relieve trial judges from their obligation to relate the evidence to the
    issues. In the final analysis, regard must be had to the importance of the
    issue; the significance of the evidence in relation to that issue and the
    prejudicial effect occasioned by the inadequate instruction.

[47]

Both
    the recognition evidence and the evidence of the appellants reactions to the
    accusations were significant parts of the Crowns case with respect to the key
    issue of identity. The trial judges failure to properly instruct the jury on these
    matters was seriously prejudicial to the appellants fair trial rights.
    Accordingly, in spite of defence counsels failure to object, I would give
    effect to both grounds of appeal.

DISPOSITION

[48]

I
    would allow the appeal, set aside the conviction

and order a new trial, if the Crown
    decides it wishes to pursue the matter. Consequently, there is no need to
    address the sentence appeal.

M.L. Benotto J.A.

I agree Robert J.
    Sharpe J.A.

I agree David Brown
    J.A.

Released: February 15, 2019


