



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), (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    that could identify the complainant or a witness shall not be published in any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, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

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

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

(b)  on application made by the complainant, the prosecutor
    or any such witness, 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).

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. Charbonneau, 2012
    ONCA 314

DATE: 20120514

DOCKET: C49981

Weiler, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marc Charbonneau

Appellant

Brian Snell, for the appellant

Eric Siebenmorgen, for the respondent

Heard: April 17, 2012

On appeal from the conviction entered by Justice Catherine
    D. Aitken of the Superior Court of Justice, sitting with a jury, on February 3,
    2006.

By the Court:



1.

Introduction



[1]

Following a jury trial before Aitken J., the appellant was
    convicted of sexual assault. The only evidence at trial directly implicating
    the appellant in the sexual assault was the testimony of the complainant. The
    main issue at trial was identification.

[2]

On appeal, the appellant argues that the trial judge erred in her
    instructions to the jury concerning eyewitness identification evidence. In
    addition, he submits that the trial judge erred in ruling that, in the event
    the appellant elected to testify, he would be subject to cross-examination on
    his criminal record.
[1]

[3]

For the reasons that follow, we would dismiss the appeal.

2.

Background

[4]

The complainant was 49 years old at the time of the
    assault. She suffers from paranoid schizophrenia. She reported the alleged
    assault to the police approximately three weeks after she says it occurred. Her
    videotaped statement to the police was admitted as evidence at the trial, on
    consent, under s. 715.2 of the
Criminal Code
. The complainant also
    gave oral evidence.

[5]

The complainant said she met her assailant on two occasions
    before the assault occurred: once, at his apartment, for coffee; and on a
    second occasion, briefly, at her apartment. She said she accompanied the
    appellant to his apartment on the day of the assault after running into him at
    a mall. She described his apartment as being in the basement of a red brick
    house near the mall.

[6]

About a week after the assault, the complainant once again saw
    her assailant at the mall. She wrote down the licence number of the white van
    he was driving as 933 1K7.

[7]

Police subsequently arrested the appellant, who lived in a
    basement apartment of a red brick house. The license number of his white van
    was 933 1KE. A sketch of the lay-out of his apartment prepared by one of the
    arresting officers closely matched a sketch prepared by the complainant during
    her interview with the police. And whereas the complainant had described the
    appellants bed as having a brown comforter with a big tiger on it, police found
    a blue comforter with a big picture of a wolf on it.

[8]

In her videotaped statement to the police, the complainant
    described her attacker as follows:




dirty,
    dark, stable brown (dark, almost black), curly, wavy hair;



nose
    that looks like a hook;



brown
    eyes;



missing
    teeth;



deep
    voice;



big
    hands;



approximately
    5' 8" in height (about six inches taller than the complainant);



kind
    of fat, on the heavy side;



shoe
    size unknown;



a
    lot of wrinkles; and



about 60 years old.

[9]

Almost three weeks after her interview with the police, the
    complainant picked the appellant's photograph out of a photographic line-up
    presented to her by the police. The appellants photograph was the fifth
    photograph in the photographic line-up booklet. The officer who conducted the
    identification procedure testified that the complainant said, thats not him,
    when shown each of the first four photographs. When she saw the fifth
    photograph, the complainant said, thats him.

[10]

The fifth photograph was the only photograph in the booklet
    depicting a man with a full moustache. The complainant had not mentioned facial
    hair in her videotaped statement to the police. Moreover, the photograph
    demonstrates that the appellant has blue eyes, not brown eyes as described by
    the complainant.

[11]

When asked at trial who she thought was in the photograph she
    selected during the photo line-up, the complainant answered: [w]ell, the face
     the face, I remember  the face looked the same, but the hair and moustache
    looked different. She said, [h]is  When I seen him, his hair and moustache
    wasnt even like that. When asked in what way it wasnt like that, she said,
    [l]ike a brush cut. It was grey  pepper/salt, and he had a grey moustache.
    This description was very different from her description of the appellants
    hair in her videotaped statement to the police, in which she described her
    attackers hair as dark brown, curly and wavy and made no mention of a
    moustache or facial hair.

[12]

After watching her videotaped statement to the police at trial,
    the complainant said she made two mistakes in her description of the
    perpetrator in the statement: his hair and his name. In her videotaped
    statement to the police, the complainant said her attackers name was Mark
    Williams  as opposed to Marc Charbonneau.

[13]

The trial was held almost two years after the date of the sexual
    assault. The appellant was in the courtroom at the time. However, when the
    complainant was asked to look around the courtroom during her examination
    in-chief, she said she did not recognize the appellant, unless hes gained a
    lot of weight, or something.
[2]

3.

Discussion

(i)

Did the trial judge err in her instructions to the jury concerning
    eyewitness identification evidence?

[14]

In his factum, appellants counsel argued that the eyewitness
    identification evidence in this case was so flawed as to make the guilty
    verdict unreasonable. During oral argument, appellants counsel acknowledged
    that, when combined with the circumstantial evidence of identity, the
    identification evidence was sufficient to support a guilty verdict.
    Nonetheless, appellants counsel maintained that the trial judge made
    reversible errors in her instructions to the jury concerning the eyewitness
    identification evidence.

[15]

In particular, the appellant submitted that the errors and
    inconsistencies in the complainants descriptions of her attacker made her
    identification of the appellant virtually no identification at all. This was
    particularly the case given that the complainant was unable to identify the
    appellant in the courtroom at trial.

[16]

The appellant argued that, in these circumstances, the trial
    judge should have told the jury that the complainants inability to identify
    the appellant in the courtroom, combined with her inconsistencies when
    describing her attackers physical appearance, required the jury to be
    extremely cautious before accepting the complainants evidence. Moreover, the
    trial judge should have specifically instructed the jury that the errors and
    inconsistencies in the complainants description were capable of raising a
    reasonable doubt. Finally, in her charge to the jury the trial judge should
    have emphasized that there is no link between a witnesss certainty at the time
    of a photo line-up identification and the reliability of that identification.

[17]

Instead, the trial judge gave the following concluding
    instruction on identification, which on appeal the appellant claimed undermined
    some of the trial judges earlier cautions:

It is not necessary that an identification witness  such as
    [the complainant], in this case  be free from doubt about the correctness or
    certainty of her identification, or that she continued to be able to identify
    the accused as the offender, at the time of trial. What is required, however,
    before you find [the appellant] guilty of the offence, is that you be satisfied,
    beyond a reasonable doubt, on the whole of the evidence, that it was [the
    appellant] who committed the offence.

I should also add that, at no time, while giving her
    evidence in court, did [the complainant] express any doubt about her
    identification at the time of the photo line-up.
What she did express was
    that, today, she did not recognize [the appellant], and was not able to say,
    today, that he was her assailant. [Emphasis added.]

[18]

The appellant argued that the inadequacies of the charge to the
    jury could be analogized to those in the charge at issue in
R. v. Richards
(2004), 70 O.R. (3d) 737 (C.A.). In
Richards
, this court concluded
    that the shortcomings of the charge necessitated a new trial.

[19]

We do not accept the appellants submissions. The trial judge
    began her instructions on eyewitness identification evidence with the standard
    instruction that juries must be very cautious about relying on eyewitness testimony
    to find someone guilty of a criminal offence. She told the jury that miscarriages
    of justice have occurred because eyewitnesses have made mistakes in identifying
    the persons whom they saw committing the crime and that honest witnesses can
    make mistakes and yet appear convincing.

[20]

The trial judge did tell the jury that the complainants
    description of her attacker matched, in many respects, the description given by
    the arresting officer. And she did state that, apart from the complainants
    descriptions of the attackers hair and moustache, the jury might find her
    evidence quite consistent. However, the trial judge also said that [i]t was
    obvious that the complainant was not clear about her assailants hair and
    moustache. In addition, the trial judge reminded the jury that the complainant
    did not recognize the appellant in the courtroom. Later, when reviewing the
    evidence and the position of the defence, the trial judge also reminded the
    jury of the specific errors and inconsistencies in the complainants eyewitness
    evidence identifying the appellant as her attacker.

[21]

In our view, it would have been preferable had the trial judge
    omitted the part of her instruction we have emphasized above in para. 17,
    reminding the jury that the complainant did not express any doubt about her
    identification at the time of the photo line-up. As the trial judge had already
    told the jury, honest and convincing eyewitnesses can still make mistakes.

[22]

That said, read as a whole, the trial judges instructions were
    sufficient to bring to the jurys attention: the frailties in eyewitness
    identification evidence, generally; the errors and inconsistencies in the
    complainants eyewitness identification evidence, specifically; and the
    requirement that the jury was not to convict the appellant unless satisfied of
    his guilt beyond a reasonable doubt. Unlike
Richards
, it was evident
    in the case at bar that the trial judge made a concerted effort to balance in
    her charge: (i) the specific frailties of the complainants evidence, and (ii) the
    evidence which supported the complainants testimony.

[23]

We also agree with counsels acknowledgment that, when combined
    with the circumstantial evidence of identity, the identification evidence was
    capable of supporting a guilty verdict. Accordingly, we do not give effect to
    this ground of appeal.

(ii)

Did the trial judge err in ruling that, in the event the appellant
    elected to testify, he would be subject to cross-examination on his criminal
    record?

[24]

At the conclusion of the Crowns case, defence counsel at trial
    (not Mr. Snell) brought a
Corbett
[3]
application seeking a ruling that the Crown be prohibited from cross-examining
    the appellant on two convictions for sexual assault entered in 1992. Although
    the trial judge ruled that the Crown could cross-examine the appellant on these
    two entries, she qualified her ruling by directing that the Crown could not
    refer to the sexual nature of the assaults.

[25]

On appeal, the appellant argues that the trial judge erred in
    holding that the appellant could be cross-examined on the two convictions at
    issue. Specifically, the appellant argues that the trial judge erred because,
    in reaching her decision, the trial judge relied, in part, on the fact that
    appellants counsel had cross-examined the complainant (and other witnesses)
    about the complainants mental health.

[26]

We do not accept the appellants argument. Even if the trial
    judge erred in this aspect of her reasoning, we see no error in the remainder
    of her reasons nor in her ultimate decision on the
Corbett
application.

[27]

The appellant had multiple entries
    for assault and other offences in his criminal record. However, the trial judge
    noted that deleting reference to the 1992 convictions from his records would
    suggest that there was a significant period in which the appellant lived a
    law-abiding life in the community when, in reality, he was serving a
    penitentiary sentence. As well, the trial judge noted, the sentences he
    received for the 1992 convictions were significantly longer than any other
    sentence he has received. In her words, allowing cross-examination on these
    convictions would allow the jury to fairly gauge just how hardened a criminal
    they consider [the appellant] to be, and what impact his criminal record has on
    their assessment of his credibility.

[28]

Throughout her reasons on the
Corbett
application, the
    trial judge properly focused on the need to weigh the probative value of the
    evidence to the jurys assessment of the appellants credibility against the prejudicial
    effect of its inclusion.

[29]

Moreover, it was appropriate for
    the trial judge to sanitize the appellants record by requiring the sexual
    assaults from 1992 to be described only as assaults:
R. v. Batte
(2000), 145 C.C.C. (3d) 498 (Ont. C.A.), at para. 51.
    Doing so reduced any potential prejudice to the appellant.

[30]

Even if the trial judge erred by considering
    the questions about the complainants mental health in the course of her ruling
    on the
Corbett
application, we
    are of the opinion that
there was no
    reasonable prospect that the application would have been decided differently if
    the error had not been made
: see s.
    686(1)(b)(iii) of the
Criminal Code.

4.

Disposition

[31]

The appeal is therefore dismissed.

Signed:        Karen M. Weiler J.A.

Janet Simmons J.A.

E. A. Cronk J.A.

Released: JS MAY 11, 2012





[1]

At the outset of his oral argument, appellants counsel
    abandoned the second ground of appeal listed in his factum: the trial judge
    erred in instructing the jury to ignore the complainant's mental disability.
    During the course of oral argument, appellants counsel acknowledged that,
    taking account of the circumstantial evidence of identification, the verdict is
    not unreasonable.



[2]
The arresting officer testified at trial. He was asked to compare the
    appearance of the appellant at arrest and at trial. He observed, among other
    things, that the appellant was heavier at the trial than he was at the time of
    arrest.



[3]

R. v. Corbett
, [1988] 1 S.C.R. 670.


