



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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.
    Huerta, 2020 ONCA 59

DATE:
20200130

DOCKET: C65457

Pardu, Roberts and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Humberto Dapena Huerta

Appellant

Jeff Carolin, for the appellant

Jennifer Trehearne, for the respondent

Heard: December 5, 2019

On appeal from the convictions entered
    by Justice Susan E. Healey of the Superior Court of Justice, sitting with a
    jury, on December 7, 2017

Thorburn J.A.:


OVERVIEW

[1]

The appellant, Humberto Dapena Huerta, was
    indicted on eight counts arising from six incidents involving six complainants.
    The charges included criminal harassment, sexual assault, and sexual
    interference. All six incidents took place within a radius of 2.7 kilometres,
    which includes downtown Richmond Hill.

[2]

The central issue at trial was the identity of
    the perpetrator.

[3]

The Crowns theory was that Mr. Huerta loitered
    near schools and parks in Richmond Hill to run at and grope young-looking
    women.

[4]

Each of the six complainants testified. The
    Crown was permitted to lead cross-count similar fact evidence.

[5]

The Crown also led evidence of three educators
    (the educators) who claimed they saw a man near the school they worked at who
    resembled the composite sketch released by the York Regional Police. The
    composite was prepared with the assistance of one of the complainants, J.A. At
    least two of the three educators testified that the man resembled the
    composite, he was a suspicious person, and they called 9-1-1 as a result.

[6]

During the trial, Mr. Huerta conceded he was the
    man the educators saw near the school, but denied he was the perpetrator of the
    charges.

[7]

At a trial by jury, Mr. Huerta was convicted of:

a)

one count of criminal harassment of N.F.;

b)

one count of sexual assault of J.C.; and

c)

one count of sexual interference and one count
    of sexual assault of J.A.

[8]

He was acquitted on four other counts relating
    to three other complainants, C.C., C.O., and K.D.

[9]

Mr. Huerta appeals his four convictions.

[10]

For reasons that follow, I would allow the
    appeal and substitute acquittals in respect of each of the convictions.

THE EVIDENCE

A.

IDENTIFICATION EVIDENCE OF THE THREE
    COMPLAINANTS WHOSE COMPLAINTS RESULTED IN CONVICTIONS

[11]

The four incidents resulting in convictions are
    as follows:

a)

N.F. was 16 years old. She was walking in a
    residential area when she noticed a man standing near a car, who began
    following her. The man walked away from her but when she glanced back, she saw
    him running toward her. N.F. began to cry and called her mother. The
    perpetrator never got closer than a metre from her and she only saw him in
    profile.

b)

J.C. was 51 years old but could have been
    mistaken for a much younger person due to her small stature. J.C. was walking
    near a high school. She noticed a man across the street and soon thereafter,
    heard someone running behind her. A man grabbed her and wrapped his arms around
    her abdomen. He slipped on the snow and they both fell to the ground while he
    was still holding her tightly. J.C. was on top of the man with her back to his
    front, the man pushed her aside, said sorry and left. J.C. did not get a good
    view of his face.

c)

J.A. was 15 years old. She was walking to a
    school and saw a man jogging toward her. She tried to get out of the way, but
    he grabbed her aggressively around the waist and tried to push her to the ground.
    When he was unable to push her to the ground, he lifted up her skirt, touched
    her upper thigh, and jogged away. J.A. said she was face-to-face with the man
    just before he grabbed her and got a relatively good look at his face.

[12]

The Crowns identification evidence from the
    three complainants whose complaints resulted in convictions was as follows:





N.F.

J.C.

J.A.



Ethnicity

Caucasian

Caucasian, not too white

Caucasian



Height

5 11

5 11

5 10



Build

Medium build

Medium build, Not too built, not too fat

Medium build



Age

40s

50 or more

Late 40s to early 50s



Hair colour

Salt and pepper hair

Greyish hair





Resemblance

Resembled George Clooney







Distinguishing features





Poor complexion with pockmarks on his
          cheeks



Accessories

Ray Ban aviator sunglasses, grey winter
          jacket that was done up, blue jeans, black ankle boots

Sunglasses

Black aviator sunglasses



General vehicle description

Older Japanese car (Toyota, Hyundai or
          Honda) with rust at the bottom of doors and up onto the doors

4-door vehicle neither old nor new,
          normal-sized





Vehicle windows

Tinted windows

Tinted windows





Vehicle rims

Alloyed wheels, steely black rims, which
          she vividly recalled







Vehicle tires

Winter tires







Photo line-up identification

Unable to identify the appellant from
          photo line-up

Unable to identify the appellant from
          photo-lineup

Not asked to identify perpetrator from
          photo lineup but participated in preparation of composite sketch




B.

IDENTIFICATION EVIDENCE OF THE COMPLAINANTS
    WHOSE COMPLAINTS RESULTED IN ACQUITTALS

[13]

Three other complainants, where the charges
    resulted in acquittals, identified the perpetrator as follows:





C.C.

C.O.

K.D.



Ethnicity

Caucasian

Caucasian with rosy face

Caucasian



Height

5 9

5 7

5 9 to 5 10



Build

Stocky, a little bit bigger

Medium build

Medium build; Normal sized, not
          overweight, not too slim



Age

40s to 50s

More than 45, around 47 years old
          (although she told police at the time of the incident that the perpetrator
          was between 30 and 40 years old)

Mid 30s



Hair colour

Brown hair



Dark brown hair in a grown-out buzz cut



Distinguishing features

Russian accent

Moustache





Accessories

Blue winter jacket, wearing hood, beige
          khaki pants







Photo line-up identification





Selected the appellants photo from a
          photo lineup 8 ½ months after the second incident; sort of recognized him



C.

THE IDENTIFICATION EVIDENCE OF THE THREE
    EDUCATORS WHO SAW THE COMPOSITE SKETCH

[14]

Following the incident involving J.A., York
    Regional Police prepared a media release and a composite sketch with J.A.s
    input. The composite includes visible pockmarks on the perpetrators cheeks
    which, it is agreed, Mr. Huerta does not have. The composite also depicts a
    male wearing dark-tinted sunglasses and a dark hood.

[15]

Two early childhood educators and a teacher who
    worked nearby testified that they saw a person in the vicinity of the school
    who could be the man depicted in the composite.

[16]

The identification evidence of those three
    educators was as follows:





Ms. Ruffolo

Ms. Alicandro

Ms. Wright



Ethnicity



Caucasian

Caucasian



Height



5 5 to 5 10

5 10



Build



Medium build, between 215 and 220 pounds

Medium build, over 180 pounds



Age

45 to 50

Mid 30s to 40s

Mid 40s



Hair

Did not observe hair on his head

Salt and pepper beard

Salt and pepper hair

Did not observe facial hair

Short

Did not observe facial hair



Accessories

Sunglasses with black lenses, baseball
          cap, and jacket

Sunglasses, dark baseball cap, black
          leather jacket, dark jeans

Black jacket, black jeans, black hat,
          dark sunglasses



Distinguishing features





Pockmarks on his cheeks



Resemblance

Resembled composite prepared by J.A.



Resembled composite prepared by J.A.
          Similar face to composite



General vehicle description

Older four-door car, brownish gold, maybe
          Hyundai

Black Honda Civic, LX model

License plate AVSJ 616





[17]

The educators evidence also included the
    following:

·

Ms. Ruffolo and Ms. Alicandro testified that the
    man they identified seemed suspicious;

·

Ms. Wright testified that she was concerned that
    the man she saw was the same person assaulting girls in the area;

·

Ms. Ruffolo and Ms. Wright testified that the
    man they saw resembled the composite prepared with the assistance of J.A.;

·

Ms. Alicandro and Ms. Wright testified that they
    called 9-1-1 as a result.

[18]

Furthermore, when reviewing the position of the
    Crown, the trial judge reminded the jury that the Crown told them the
    composite developed with the assistance of J.A. was in Sonia Wrights mind when
    she observed Mr. Dapena Huerta close by Father Henri Nouwen School on October
    9, 2014, and decided to phone the police.

D.

MR. HUERTAS APPEARANCE AND DESCRIPTION OF HIS
    VEHICLE

[19]

Mr. Huerta is a Caucasian male in his 40s or
    50s, of medium build, just over five feet nine inches tall. He has short dark
    hair with white at the edges and smooth facial skin with deep ridges near his
    nose and mouth. He does not have pockmarks on his face. Mr. Huertas brother
    testified that Mr. Huerta did not have facial hair during the relevant period
    and that he would typically not be unshaven.

[20]

Mr. Huerta drove a black Honda Civic with
    all-weather tires with silver rims, the windows were clear, and there was rust
    on the rear fender. He resided within a 2.7 km radius of the incidents, about
    23 square kilometres.

THE ISSUES

[21]

The issues on this appeal are:

1.

Was the evidence of the three educators
    admissible and if so, for what purpose?

2.

Was the jury charge adequate?

3.

Were some or all of the four guilty verdicts
    unreasonable such that acquittals should be substituted for the convictions?

ANALYSIS

(1)

ISSUE ONE: WAS THE EVIDENCE OF THE THREE
    EDUCATORS ADMISSIBLE AND IF SO, FOR WHAT PURPOSE?

[22]

The educators saw the composite and thought they
    recognized the person they had seen near the school as the person in the
    composite. The evidence of the educators that Mr. Huerta resembled the person
    in the composite should not have been left with the jury for the purpose of
    establishing the identity of the perpetrator because:

a)

The educators were not eyewitnesses to an
    offence, rather they thought they saw someone who resembled the image in the
    composite sketch. The sketch showed a person with deeply pockmarked cheeks  a
    feature that the appellant does not have;

b)

By the end of the trial, the appellant conceded
    he was in the park on the day the educators saw him, and their evidence was
    therefore unnecessary to prove this admitted fact;

c)

The educators evidence that the appellant was
    suspicious was highly prejudicial. He was not doing anything wrong in
    attending a public park, which was not a location where any of the complainants
    reported difficulties; and

d)

The marginal relevance of this evidence to the
    issue of identity was outweighed by its prejudicial effect.

(2)

ISSUE TWO: WAS THE JURY CHARGE ADEQUATE?

(a)

Principles for assessing the adequacy of a jury
    charge

[23]

The test in assessing a jury charge is whether
    the jury was properly, not perfectly instructed:
R. v. Calnen
, 2019
    SCC 6, 374 C.C.C. (3d) 259, at para. 9.

[24]

The question is whether there were deficiencies
    in the charge that caused a serious concern about the jury instruction as to
    how to address the evidence and the law that applies:
R. v. Jacquard
,
    [1997] 1 S.C.R. 314;
R. v. Duncan
, 2015 ONCA 928, 332 C.C.C. (3d) 347,
    at para. 27.

[25]

Misdirecting or failing to direct a jury on the
    use to be made of evidence is an error of law:
R. v. Crawford
;
R.
    v. Creighton
, [1995] 1 S.C.R. 858, at pp. 884-86.

[26]

As noted by Watt J.A. in
R. v. J.A.T.
,
    2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 53,

Where evidence of extrinsic misconduct is
    admitted exceptionally in a criminal jury trial, the chief work of mid-trial
    and final instructions is prophylactic: to confine jury use of this evidence to
    its permitted purpose and to abjure prohibited reasoning. These limiting
    instructions, whether given as mid-trials or as finals, should contain three
    elements:

i. a description of the evidence to which the
    instruction applies;

ii. a positive instruction advising the jury
    about the use they may make of the evidence (the permitted use); and

iii. a negative instruction directing the jury
    about the use they must not make of the evidence (the prohibited use).
    [Citations omitted.]

(b)

Jury instructions regarding the use of the
    educators evidence

[27]

The educators described the person they saw near
    the school by comparing their observations to the composite released by the
    police into the community, describing what he was wearing, and his demeanour.

[28]

The trial judge told the jury,

If you decide that the man [the educators]
    observed was Mr. Huerta, you may but do not have to use the evidence of
their
    descriptions of him
in order to help you to assess whether Mr. Huerta has
    been properly identified as the person responsible for some or all of the
    crimes charged. [Emphasis added.]

[29]

She went on to say,

You may, but do not have to, use the
    evidence of the three witnesses from the Henri Nouwen school  to help you to
    decide whether the Crown has proved the identity of the person alleged to have
    committed the crimes
charged on the indictment
    beyond a reasonable doubt.

However, if you find that the person whom they
    observed was Mr. Dapena Huerta, you must not use the evidence of any of the
    Henri Nouwen witnesses to infer or conclude that on the mornings of October 8
    and 9, 2014, Mr. Dapena Huerta had formed an intention to commit an offence, or
    that Mr. Dapena Huerta is a person having a character or disposition of a type
    that would make him likely to commit the offences charged in any count. [Emphasis
    added.]

[30]

With respect to the educators evidence, the
    jury should have been instructed:

a)

That the educators evidence on the issue of the
    similarity between the person they saw and the image in the composite was not
    admissible for the purpose of establishing the identity of the perpetrator;

b)

J.A.s composite was exculpatory evidence, as
    there were prominent pockmarks on both cheeks, which Mr. Huerta does not have;

c)

The educators evidence that the appellant was
    suspicious should not have been admitted. At the very least, the jury should
    have been told this evidence was not relevant to the issue of whether the
    appellant was the perpetrator of any of the offences charged.

[31]

The jury was not given these instructions.
    Without them, it is not clear the jury would have understood what use they
    could and could not make of this evidence.

[32]

The Crown points out that counsel did not object
    to the charge at trial. However, a legal error remains a legal error even if
    counsel does not object:
R. v. Forde
, 2011 ONCA 592, 277 C.C.C. (3d)
    1, at para. 61.

(c)

Jury instructions regarding eyewitness evidence

(i)

Principles for assessing adequacy of jury
    instructions about eyewitness evidence

[33]

Trial judges must instruct juries on the general
    and specific dangers of eyewitness evidence. In
R. v. Lewis
, 2018 ONCA
    351, at para. 18, Sharpe J.A., for the court, held that a new trial was
    warranted where a trial judge failed to direct the jurys attention to the
    specific frailties posed by eyewitness evidence. He cautioned that it is not
    enough to give a general caution relating to eyewitness identification:

[T]he trial judge must convey to the jury the
    judicial experience that eye-witness evidence poses serious dangers. The trial
    judge must identify for the jury "any specific weaknesses" in the
    eyewitness identification evidence and warn the jury not only of the general
    dangers of identification evidence, but also of the specific dangers arising in
    the circumstances of the particular case.

[34]

Such cautions are necessary because of the
    dangers posed by eyewitness identification evidence, which was explained by
    this court in
R. v. M.B.
, 2017 ONCA 653, 356 C.C.C. (3d) 234, at para.
    29:

Eyewitness identification is inherently
    unreliable. It is difficult to assess, is often deceptively reliable because it
    comes from credible and convincing witnesses and is difficult to discredit on
    cross-examination for those same reasons. Studies have shown that triers of
    fact place undue reliance on such testimony when compared to other types of
    evidence. As a result, many wrongful convictions result from faulty, albeit
    convincing, eyewitness testimony, even in cases where multiple witnesses
    identify the same person.

[35]

Trial judges should instruct juries that when an
    eyewitness fails to mention any distinctive feature of the accused, the
    reliability of an eyewitness identification may be called into question. In
R.
    v. Jack
, 2013 ONCA 80, 294 C.C.C. (3d) 163, at paras. 16 and 27, Epstein
    J.A. emphasized that,

[T]he jury must be instructed to carefully
    scrutinize the witness description of the assailant: Was it generic and vague,
    or was it a detailed description that includes reference to distinctive
    features of the suspect? In some cases,
the failure to mention distinctive
    characteristics of a suspect is sufficiently important, especially where there
    is no other inculpatory evidence, to reduce the case from one of identification
    effectively to one of no identification
.



[T]he charge did not provide the jury with
    adequate assistance on how to assess the reliability of the victims
    description of the robber given that their descriptions were generic and did
    not contain any reference to the appellants distinctive features
that would have been apparent given the proximity of the contact
    between the perpetrator and his victims. [Citations omitted; emphasis added.]

[36]

When generic eyewitness description is coupled
    with the failure of the eyewitness to identify the accused as the perpetrator,
    further instruction may be warranted. In
R. v. Vassel
, 2018 ONCA 721,
    365 C.C.C. (3d) 45, at para. 186, Watt J.A. advised,

where a witness has provided a generic
    description of a perpetrator, a description that generally fits the accused
    among others, but does not identify the accused as the perpetrator,
it may
    be necessary for a trial judge to instruct the jury that the mere fact that the
    accused fits the generic description does not, on its own, permit the jury to
    conclude that the accused is the perpetrator
. [Emphasis added.]

[37]

When an eyewitness describes distinguishing
    features, the trial judge should instruct the jury as to the potential
    importance of any significant discrepancy between the description of the
    [perpetrator] provided and the persons actual appearance:
R. v. Savoury
(2015), 200 C.C.C. (3d) 94 (Ont. C.A.), at para. 14. After doing so, the jury
    is entitled to decide the extent and significance of inconsistencies in the
    description of the perpetrator and the accused.

(ii)

Application

[38]

The trial judge provided a general caution on
    the dangers of eyewitness testimony, including
inter alia
that: people
    make honest mistakes; it may seem more reliable than it is; and it can lead to
    miscarriages of justice. The trial judge further instructed the jury to
    consider the reliability of the identification witnesses. In doing so, she told
    them to keep in mind questions like: how reliable is that witness memory
    overall; how capable is the witness of communicating her observations;
    [t]he circumstances in which the witness made her observations; and under
    what conditions they were each able to observe the man.

[39]

In this case, the trial judge conveyed the
    general dangers of eyewitness evidence, but she erred by failing to identify
    specific weaknesses in the eyewitness identification evidence and the dangers
    in this case. Specifically, the trial judge did not properly instruct the jury
    on how to assess the reliability of the evidence of N.F. and J.C. The trial
    judge should have pointed out that much of their evidence was generic and that
    they did not mention distinguishing features. This is a badge of unreliability,
    as described in
Jack
, at para. 29.

[40]

Furthermore, neither N.F. nor J.C. identified
    the accused in a photo line-up. Therefore, the trial judge should have
    instructed the jury that the mere fact that the accused fits the generic
    description does not, on its own, permit the jury to conclude that the accused
    is the perpetrator:
Vassel
, at para. 186.

[41]

Nor did the trial judge highlight exculpatory, distinctive
    features. The distinguishing feature provided by J.A., the only complainant who
    got a good look at the perpetrators face, was exculpatory, as Mr. Huerta did
    not have pockmarks on his face. There was also other evidence in respect of the
    perpetrator that conflicted with Mr. Huertas appearance and person, such as
    C.O.s testimony that the perpetrator had a moustache and C.C.s observation
    that he had a Russian accent.

[42]

Some of the particulars about the vehicle
    described by N.F. are also inconsistent with those of the car Mr. Huerta drove.
    While the car N.F. described was an older Japanese car with rust on it, the
    rust was not on the doors as N.F. testified, nor did it have tinted windows,
    winter tires, or black rims. The car he drove had all-season tires with silver
    rims, the windows were not tinted, and the rust was not on the doors but on the
    rear fender close to the tire. The trial judge should have highlighted these
    discrepancies: see
Savoury
, at para. 14.

[43]

For these reasons, and in the circumstances
    where the central issue was identification of the perpetrator, the jury charge
    was inadequate in this respect.

(3)

ISSUE THREE: WERE SOME OR ALL OF THE FOUR GUILTY
    VERDICTS UNREASONABLE SUCH THAT ACQUITTALS SHOULD BE SUBSTITUTED FOR THE
    CONVICTIONS?

(a)

Principles for assessing whether a verdict is
    unreasonable

[44]

In determining whether a verdict is
    unreasonable, s. 686(1)(a)(i) of the
Criminal Code
, R.S.C., 1985, c.
    C-46, provides that an appellate court must determine whether on the facts
    presented to the trier of fact, a jury properly instructed, could convict the
    accused.

[45]

The issue is not whether the verdict was
    possible but whether it was reasonably available on the evidence. A verdict is
    unreasonable if a properly instructed jury, acting judicially could not have
    come to that verdict:
R. v. Robinson
, 2017 ONCA 645, 352 C.C.C. (3d)
    503, at para. 30.

[46]

To determine whether a verdict was reasonable,
    an appellate court must not merely ask whether twelve properly instructed
    jurors, acting judicially, could reasonably have come to the same result, but
    do so through the lens of judicial experience, which serves as an additional
    protection against an unwarranted conviction:
R. v. Yebes
, [1987] 2
    S.C.R. 168, at p. 185;
R. v. Biniaris
, 2000 SCC 15, 143 C.C.C. (3d) 1,
    at para. 39.

[47]

Section 686(1)(a)(i) of the
Criminal Code
provides for limited appellate review of the sufficiency of the evidence, as
    the court owes deference to the jury who saw and heard the evidence. However,
    the review contemplated under s. 686(1)(a)(i) is not limited to a determination
    of whether there was any evidence to support the conviction.

[48]

Where the verdict is said to be unreasonable or
    not supported by the evidence, the appellate court must engage in a limited
    weighing of the evidence, independently examine and assess the evidence adduced
    at trial, and reach its own conclusion:
R. v. Hafizi
, 2019 ONCA 2, 373
    C.C.C. (3d) 264, at para. 27;
R. v. W.H.
, 2013 SCC 22, [2013] 2 S.C.R.
    180, at paras. 27-28. An appellate court should set aside a conviction if the
    verdict cannot be supported by the evidence: see
Criminal Code
, s.
    686(1)(a)(i).

[49]

In
R. v. Ellis
, 2008 ONCA 77, at paras.
    4-5, this court held the conviction was unreasonable because the evidence was
    too generic and insufficient to establish identity. Although the accused was
    arrested up the street from where the robbery took place, the imitation gun
    found did not match the description given by the salesperson who was held at
    gunpoint (although there were some similarities), only a generic description of
    the assailant was given (describing him as a tall black man wearing a dark
    jacket, dark coloured hat, and dark pants), and the description of the hat did
    not match the description given by the salesperson. There was therefore
    insufficient evidence to establish guilt on the basis of identification
    evidence, and an order was made quashing the conviction and entering an
    acquittal.

[50]

Similarly, in
Quercia
, at p. 472, this
    court substituted acquittals for the convictions where the appellant did not
    fit the description given at trial.

The victim's opportunity to observe and her
    determination to mentally record the appearance of her attacker magnify the
    significance of the marked differences between her initial recollection of what
    her assailant looked like and the actual appearance of the appellant.
I
    refer particularly to the pock-marked facial skin and the askew left eye. On
    the victim's evidence, these inconsistencies cannot be explained by
    difficulties inherent in her opportunity to see her attacker or in her ability
    to mentally record the appearance of her attacker. Nor did the victim testify
    that her initial description was in error
, although she suggested that the
    prominence of these two features was being over-emphasized by counsel for the
    appellant. These two differences remain totally unexplained.
One must
    conclude that, in at least two vital respects, the appellant quite simply does
    not fit the description initially given by the victim and verified by her as
    accurate at trial
. [Emphasis added.]

(b)

Application

[51]

In this case, most of the evidence regarding the
    perpetrators physical description was generic. All six complainants described
    the perpetrator as Caucasian, most said he was of medium build, between five
    feet nine inches and six feet tall, and five of the six said he was in his 40s
    or 50s. All of the complainants whose complaints resulted in convictions
    described him as having greyish or salt and pepper hair and sporting
    sunglasses.

[52]

However, three specific distinctive features
    noted were inconsistent with Mr. Huertas description: (1) he had no prominent
    pockmarks on his face; (2) he did not speak with a Russian accent; and (3) he
    did not sport a moustache.

[53]

The same was true of Mr. Huertas car. While he
    did drive an older Japanese car: (1) the windows were not tinted; (2) his
    vehicle had all-weather not winter tires; (3) it had silver rims not black
    rims; and (4) the rust spots were in different places on the car than described
    by N.F.

[54]

The counts involving the complainants who
    described the perpetrator as having a Russian accent and sporting a moustache
    resulted in acquittals. J.A.s complaint resulted in a conviction, although she
    described the perpetrator as having distinctive pockmarks, which she helped
    depict in the composite.

[55]

The Crown concedes, in paragraph 40 of its
    factum, that the distinctive features described by some complainants that do
    not correspond to Mr. Huertas physical appearance are in all likelihood the
    reason for the acquittals on many of the charges.

[56]

I will now explain why all four convictions
    should be substituted with acquittals.

(i)

Two convictions in respect of J.A.

[57]

Among the three complainants whose complaints
    resulted in conviction, only J.A. said that she was able to get a good look at
    the perpetrator.

[58]

The composite prepared with the participation of
    J.A. shows very prominent pockmarks on both cheeks.

[59]

The two charges of sexual interference and
    sexual assault involving J.A. must result in acquittals, as the lack of facial
    pockmarks is both significant and exculpatory. Moreover, the only other
    evidence proffered by J.A. was generic: that the perpetrator was Caucasian,
    five feet ten inches tall, of medium build, and in his late 40s to early 50s.
    She made no observations about a car.

[60]

While some of the generic evidence J.A. provided
    is similar to generic evidence of other witnesses, J.A. described the
    perpetrator as having distinctive features, which Mr. Huerta does not have. The
    cumulative effect of the following facts leads to the conclusion that there is
    insufficient evidence upon which the jury could have been satisfied of Mr.
    Huertas guilt beyond a reasonable doubt and convicted on the charges of sexual
    interference and sexual assault of J.A.:

a)

The composite was prepared with the assistance
    of J.A. in her presence;

b)

J.A. testified that she did not recall providing
    the forensic artist with different descriptions than she had described at
    trial;

c)

The composite has distinctive pockmarks, a
    feature that dominates the composite;

d)

J.A., unlike the other complainants in this
    proceeding, was approached by the perpetrator from the front and she said she
    got a good look at him;

e)

Mr. Huerta does not have any pockmarks on his
    cheeks.

[61]

An order is therefore made quashing the
    convictions of sexual interference and sexual assault of J.A. and entering
    acquittals on those two counts.

(ii)

Convictions in respect of N.F. and J.C.

[62]

The convictions in respect of N.F. and J.C. rest
    largely on generic evidence: that is, that the perpetrator was a Caucasian
    male, in his 40s to 50s, about five feet ten inches to five feet eleven inches
    tall, with greyish hair, and wearing sunglasses.

[63]

Both N.F. and J.C. testified that they did not
    get a good look at the perpetrator. N.F. testified that she only saw the
    perpetrator in profile and never from closer than one metre away. J.C.
    testified that she did not get a good look at the perpetrator.

[64]

Neither was able to identify Mr. Huerta from a
    photo line-up.

[65]

Moreover, some of the features of the older
    Japanese car described by N.F. are not consistent with the car Mr. Huerta was
    driving. The rust was not on the doors as N.F. testified, nor did it have
    tinted windows, winter tires, or black rims. It had all-season tires with
    silver rims, the windows were not tinted, and the rust was not on the doors but
    on the rear fender close to the tire. Moreover, a little more than a month
    after the incident, N.F. reported to the police that she had seen the same car
    which was very recognizable to [her] but it belonged to another person; N.F.
    conceded that there could have been another, very similar car in the area on
    the day of the incident.

[66]

Moreover, cross-count similar fact evidence was
    admitted on the premise that the same person likely committed all of the
    offences charged.

[67]

Where similar fact evidence is allowed, the
    trier of fact may use the evidence from one count on which there was an
    acquittal to assess an accuseds liability on other counts:
R. v. Arp
,
    [1998] 3 S.C.R. 339, at para. 79;
R. v. Mahalingan
, 2008 SCC 63,
    [2008] 3 S.C.R. 316, at paras. 66-72.

[68]

This evidence however, is exculpatory in many
    respects, as it attributes distinctive features to the perpetrator not shared
    by the appellant, such as a moustache, Russian accent, and pockmarks.

[69]

For these reasons, looking at all of the
    evidence, there is insufficient evidence upon which a reasonable jury could be
    satisfied beyond a reasonable doubt that the appellant was the perpetrator of
    the offences involving N.F. or J.C. I would therefore enter acquittals on those
    counts as well.

CONCLUSION

[70]

For the above reasons, I would substitute
    acquittals on each of the four counts on which the appellant was convicted.

Released: January 30, 2020 (G.P.)

J.A.
    Thorburn J.A.

I
    agree. G. Pardu J.A.

I
    agree. L.B. Roberts J.A.


