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    that could identify the complainant or a witness shall not be published in any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. Samuels, 2013
    ONCA 551

DATE: 20130918

DOCKET: C52516

Weiler, Blair and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Samuels

Appellant

Faizal Mirza, for the appellant

John Patton, for the respondent

Heard: May 23, 2013

On appeal from the conviction entered on April 14, 2010,
    and the sentence imposed on May 31, 2010, by Justice A. Donald K. MacKenzie of
    the Superior Court of Justice, sitting with a jury.

Strathy J.A.:

[1]

The appellant was charged with living off the avails of prostitution (
Criminal
    Code
s. 212(1)(j)), living off the avails of prostitution of a person
    under 18 (s. 212(2)), aiding the complainant to engage in prostitution (s.
    212(1)(h)) and of uttering a threat (s. 264.1(1)(a)). He was acquitted of the living
    off the avails offences, but was found guilty of the lesser offence of
    attempting to live off the avails of prostitution of a person under 18 and of
    aiding the complainant to engage in prostitution. He was acquitted of uttering
    a threat. He was sentenced to 18 months incarceration. He appeals his
    conviction and sentence.

[2]

The appellant advances several grounds of appeal. In my view, the dispositive
    one is the trial judges failure to instruct the jury on the impermissibility
    of propensity reasoning in accordance with the decision of the Supreme Court of
    Canada in
R. v. D. (L.E.)
, [1989] 2 S.C.R. 111, and this Courts
    decision in
R. v. B. (C.)
(2003), 171 C.C.C. (3d) 159. As a result, and
    for the reasons that follow, I would order a new trial.

A.

THE FACTS

[3]

The complainant left her grandmothers home at 17 to work as a stripper.
    She needed a place to live and another stripper, C., introduced her to the
    appellant, Robert Samuels. He was the tenant of a two-bedroom apartment and
    was, according to his evidence, looking for another roommate. She moved into a
    spare bedroom in his apartment on November 11, 2007, and stayed there until
    November 15, 2007, the period covered by the indictment. Two other women, K. and
    J., were also living in the apartment. The complainant testified that she
    shared a room with J. and that K. slept with the appellant.

[4]

The complainant testified that after she moved in, the appellant drove
    the women to a hotel where they used his computer to post prostitution
    advertisements on the Craigslist website. He then drove them to an apartment on
    Bloor Street, where they engaged in prostitution. She gave the money she earned
    to a woman called JoJo, who ran the establishment. She also went to the
    Church and Wellesley area with the appellant and others for the purposes of
    prostitution. She initially told the appellant that she was 22 years old, but
    on the night of November 14, she told him she was 17.

[5]

On November 15, 2007, the complainant contacted her grandmother because
    she was afraid of the appellant and wanted to escape his control. The
    grandmother called the police, who came to the Bloor Street apartment and took the
    complainant to the station, where she gave a videotaped statement. With the
    complainants assistance, the police determined that the Craigslist
    advertisements were still in place and were being updated.  They obtained a
    warrant to search the appellants apartment for computer equipment, and for clothing
    and false identification belonging to the complainant.

[6]

In the course of the search the police seized:

·

a computer, being used by K. and another woman to access Craigslist;

·

four cell phones;

·

a notebook, with a picture of Tinkerbell on the cover,
    containing various entries, some prostitution-related;

·

two handwritten notes, one of which appeared to be a draft of a
    letter to the writers mother;

·

two books, one called Pimping Aint Easy and the other
    Pimpology; and

·

$1,660 in cash.

[7]

T
he Tinkerbell notebook stated near the front,
    This Notebook belongs to [a nickname for K.]. It contained such mundane entries
    as a grocery list and a list of chores. It also contained descriptions of
    several women by age, background, weight and chest size, daily records of
    appointments, including customers names, duration of appointments and prices,
    the phone number shown in some of the Craigslist advertisements and the address
    of the Bloor Street apartment.

[8]

One of the handwritten notes, on Comfort Inn stationery, said, in part:

Hi mom I know I havent talked to you in forever and you are
    kinda rite on what you think I am doing ... I am NOT selling my body. I work at
    a place called blue loougen. It is a message place with no extars meaning NO
    SEX NO ORAL.

[9]

The police later extracted from the computer photographs of women in
    sexually explicit poses and internet links to prostitution advertising. They
    also extracted text messages from the cell phones.

[10]

These
    materials included the following:

·

approximately 40 thumbnail photographs, showing partly clothed
    or nude women in sexually explicit poses;

·

about 20 pictures and images, described as Craigslist Pictures
    on Computer, some showing women in erotic poses;

·

photographs of the appellant in various settings with some of the
    women shown in the photographs, as well as with other men; and

·

text messages, taken from one of the cell phones which had the
    phone number listed in some of the advertisements, containing, among others,
    messages from potential customers making inquiries about services, prices and
    appointments.

[11]

In
    addition, the Crown introduced, through one of the police officers, twelve
    advertisements downloaded by the police from the Erotic Services section of Craigslist,
    containing sexually explicit photographs of women and advertising sexual
    services and prices. In some cases, the contact telephone number listed in the Craigslist

advertisements matched the number of one of the cell phones found in the
    appellants apartment. Some of the photographs matched images of women found on
    the appellants computer. Most of the advertisements were posted either before
    or after the dates of the alleged offences in the indictment.

[12]

That
    cell phone contained some text messages from K., including one that said Hey,
    can we do any out calls? Two of the other cell phones found in the appellants
    room had his cell phone number programmed to it. The Tinkerbell notebook found
    in his apartment also contained references to a nickname for K., the numbers of
    two of the cell phones found in his room, a reference to Craigslist and the
    address of the Bloor Street apartment.

[13]

At
    trial, the appellant denied any involvement in pimping and denied pimping the
    complainant. He said K. and the complainant were simply tenants in his
    apartment and denied that he had taken them to work as prostitutes.

[14]

The
    appellant acknowledged that he owned the computer and had possession of the
    cash and the two books about pimping. Although he conceded that his computer
    contained pictures of naked women, including K., and that some of K.s pictures
    had been posted to an escort services site on Craigslist, he denied that he was
    responsible for the photographs and internet postings. He pointed out that he
    did not have exclusive use of the computer and said he regarded his computer in
    much the same way as his television  it was there for everyone to use.

[15]

The
    only Crown witnesses, apart from police officers, were the complainant and the
    rental agent for the appellants apartment. The appellant testified. He called several
    witnesses, including the complainants grandmother, some of his friends,
    including his girlfriend, and C., who testified that she introduced the
    complainant to the appellant, but only to help him to find a roommate. She
    testified that K. was not the accuseds girlfriend and was not sleeping with
    him. She denied that she was acting as a recruiter of prostitutes for the
    appellant.

B.

the ruling on admissibility

[16]

The
    trial judge made a number of pre-trial rulings.
[1]
It is only necessary to review his ruling on the exclusion of the evidence
    derived from the search of the appellants apartment. The defence sought to
    exclude this evidence on the ground that its admission would have a prejudicial
    effect on the fairness of the trial, which would outweigh its probative value. The
    defence asserted that the admission of the evidence would lead the jury into
    the error of using the evidence for an improper purpose, such as propensity
    reasoning. In particular, the defence argued that:

a.

the titles and
    contents of the two books had no probative value in relation to the charges
    against the appellant and would lead the jury to draw improper inferences;

b.

the cell phones
    did not belong to the complainant and the text messages were to and from
    persons who were unknown and their admission would have a prejudicial effect;

c.

the images in
    the computer of scantily-clothed or nude women in sexually provocative poses and
    photographs of the appellant with some of the women were prejudicial and
    without probative value, because there was no evidence the appellant had
    exclusive use of the computer and no evidence of complaints made by anyone
    shown in the photographs; and

d.

the Tinkerbell
    notebook, according to its cover, belongs to [a nickname for K.] and the
    writing in the book by someone other than the complainant had no probative
    value.

[17]

The
    Crown acknowledged that this evidence could have some prejudicial effect, but contended
    that this was outweighed by its probative value, namely that it was
    confirmatory of the complainants evidence and was necessary to assist the jury
    in evaluating the complainants evidence on the one hand, and the appellants
    on the other. The Crown said that any prejudicial effect could be addressed by
    an instruction to the jury about the proper use to be made of the evidence, to
    prevent findings based on propensity reasoning.

[18]

The
    trial judge permitted the evidence to be introduced. He found that some of the
    evidence, such as the two books, the text messages, the computer contents and
    the Tinkerbell notebook, could be confirmatory of the complainants
    allegations. The text messages could also go to the appellants state of mind,
    even though they did not specifically refer to the complainant. He concluded
    that the probative value of this evidence outweighed its prejudicial effect. He
    suggested that any prejudicial effect of the text messages could be allayed,
    if necessary, by a limiting instruction having regard to the evidence to be
    adduced at trial.

[19]

No
    mid-trial instruction was requested at the time this evidence was admitted and
    none was given.

C.

THEORIES OF DEFENCE AND CROWN

[20]

In
    his closing address, defence counsel told the jury that the case was
    essentially one of credibility as between the complainant and the appellant and
    he argued that

the appellants evidence raised a reasonable doubt about
    his guilt. He submitted that on the complainants own evidence, the appellant
    was never in the Bloor Street apartment, never spoke to

JoJo and never
    saw the appellant in contact with JoJo. He submitted that there was reasonable
    doubt about whether the appellant knew what was going on in the Bloor Street
    apartment and whether he received any money from the complainants
    prostitution.

[21]

Defence
    counsel contended that the computer pictures, the Craigslist

advertisements
    and the text messages were unconnected to the complainant and were simply distraction:

Theres not one piece of evidence, of all the other
    videotapes, all the other computer images youve seen, all the cell phones that
    youve seen, that connected to [the complainant]. Nothings about [the
    complainant]. Im sure youve been wondering wheres the picture thats going
    to come up with [the complainant]. Where is the text message from [the
    complainant].  Theres none of that. The text, the computers, the notes, none
    of it has anything to do with [the complainant], theres no evidence. And none
    of it was put to [the complainant].

Youll recall [the complainant] is on the stand for quite
    some time. None of those images were put to her, does she know is this her, is
    that her. None of them were connected to her. None of them were  they were put
    to her in the sense of can you recognize this. Nothing was her. She didnt
    recognize any of those images being her. None of the files had anything to do
    with her. None of the Craigslist advertisements had her name, had her
    description, had her picture. So, theres all this other evidence. Sure, what
    is it evidence of? Its distraction. The issue is [the complainant] was not
    being pimped by Mr. Samuels, thats the issue. Whether theres all sorts of
    other evidence, thats just distraction from that main issue.

[22]

Anticipating
    the Crowns argument, defence counsel added that the text messages and pictures
    would be used by the Crown to make up for the lack of evidence of a
    traditional pimping scenario by showing inflammatory and grimy
    pornographic pictures:

Theres going to be a lot of emphasis on these text
    messages, a lot of emphasis on these computer pictures. Why? Because we dont
    have the traditional pimping scenario here. We dont have the grimy details of
    violence and abuse, so how do we  how does the Crown, you know, bring that
    element out? Lets show lots of pornographic pictures that are on the computer,
    to add that element of thats, you know, a level of griminess, that level of,
    you know, this is not something that, you know, sits well with us. So, show
    these pictures.

[23]

The
    Crowns theory, as put to the jury in counsels closing, was that the appellant
    allowed the complainant to stay in his apartment, rent free, because he saw an
    opportunity to profit from her willingness to engage in prostitution. He
    enlisted her to join his existing stable of women, K. and J., who he was pimping.
    He supplied the accommodation and transportation and he had the tools of the
    trade, including cell phones and the computer containing photographs and
    advertisements to sell sexual services. He also had how to books and
    substantial amounts of cash.

[24]

The
    Crowns position was that the appellants evidence was not credible. Crown
    counsel told the jury:

Quite simply, the Crowns position is that Mr. Samuels lied
    to you repeatedly, over and over again. He lied to you about his relationship
    with K. And if hes prepared to lie to you about his relationship with K., hes
    prepared to lie to you about the relationship with [the complainant].

[25]

The
    Crown went on to point out that the pictures used for the Craigslist

advertisements
    were on the appellants computer and accessible to him, a few clicks away
    from his own personal pictures. The Crown asked the jury to consider whether,
    if K. was only a roommate as the appellant alleged, she would have put
    compromising pictures of herself on his computer. The Crown said that his
    computer was being used because hes managing the operation.

[26]

Crown
    counsel explained the relevance of the computer and cell phone evidence to the
    jury as follows:

So, when my friend says, oh, whats the big deal about all
    this other evidence, well, it is a big deal. It confirms a major part of [the
    complainant]s evidence when she says that K. and J. were working for Mr.
    Samuels. Their pictures are on his computer. The Craigslist pictures were on
    his computer. Four phones are in his bedroom. One of those phones comes back to
    the Craigs listing.  One of those phones, the Craigslist phones, has a text
    message going to Mr. Samuels phone, saying, Are we doing out calls at a time
    approximately  I think it was November 1
st
. So, 11 days prior to [the
    complainant] being involved with Mr. Samuels, theres this text message.

So, thats what all that evidence is about. It confirms and
    can restore your faith in [the complainant]s ability to be credible and
    reliable. She says that they were working for him, and there is an abundant
    amount of evidence to suggest that they were working for him.

[27]

On
    the subject of the two books, the Crown said:

And I pause here to say this. Mr. Samuels is not being
    prosecuted for having bad taste in literature. Were not here because he was
    found with those two books. Were here because of all the evidence that he has
    been found in possession of and all the evidence that we have.

[28]

This
    comment, while perhaps a witty throwaway, invited the jury to consider all the
    evidence found in the accuseds possession in order to determine his guilt. As
    I will explain, the trial judge was required to explain the test to be met
    before the jury could use this evidence and the permissible and impermissible
    uses of it, if the jury found it met the test.

D.

The Trial Judges Instructions

[29]

In
    his instructions to the jury, the trial judge made several references to the
    material seized from the appellants apartment and the computer files and text
    messages discovered by the police.

[30]

He
    referred first to the handwritten notes and the Tinkerbell notebook, explaining
    that they could be used as circumstantial evidence of the nature of the
    transactions taking place from the appellants apartment. He told the jury that
    the documents could not be used for the truth of their contents and that the
    weight to be given to them was a matter for the jury. He said:

The handwritten materials cannot be used to prove the truth
    of the factual contents of the handwritten materials. The handwritten material,
    however, can be used to establish the fact that they were made and as
    circumstantial evidence of the nature of the transactions being conducted in
    and from the accuseds apartment on Burnhamthorpe. This evidence, being
    circumstantial in nature, will be considered by you together with all the
    evidence youve heard at the trial in arriving at your verdict. Again, as
    judges of the facts, you will decide what weight should be given to it.
    However, as Ive mentioned, you cannot use it to prove the contents, the truth
    of the contents of the handwritten material.

[31]

He
    then referred to the evidence of one of the police constables who had searched
    the appellants apartment and interviewed K. and C., who were found in the appellants
    apartment, but who denied that they worked in the sex trade. The same officer
    had determined the phone numbers of the cell phones found in the appellants
    apartment and correlated them to advertisements on Craigslist
.
He confirmed
    that some of the advertisements referred to K. under her stage name. The
    trial judge explained:

[The officers] involvement was also involving the
    investigation of two of the cell phone numbers, and that is, checking those
    numbers by correlating them to the Craigslist erotic section. Youve heard
    about that. Craigslist has a section, escort and  erotic I guess is the proper
    term. Those section ads are for escort prostitution services and also to obtain
    photos of sex trade workers in those sources. He also testified that some of
    the search results he obtained on the Craigslist erotica section did refer and
    were applicable to one of the females who were found in at the apartment at the
    search and that is this K. under her stage name... He did ask the two females
    what their involvement was in terms of whether they were being pimped and both
    denied that they were sex trade workers. They also declined to give any
    statements.

[32]

The
    trial judge also instructed the jury with respect to the cell phone data
    extracted by the police and contained in three exhibit binders. He said:

You will have those binders available to you that you can
    look and peruse at length. But I will want you to recall that some of these
    messages, both the call histories, text messages, et cetera, were to the
    accused on his cell phone numbers. Other messages were from the accused on his
    cell phone numbers. We have no evidence as to the true identity of the person
    or persons who may have originated the calls or messages to the accused. In
    this situation, these call histories and the text messages cannot be used to
    prove the factual contents of the call histories and text messages. However,
    those call histories and text messages can be used to establish the fact they
    were made and may be used as evidence of the state of the mind of the
    addressee, that is, the accused.

[33]

He
    explained that the evidence was circumstantial and would have to be considered
    with all the other evidence and that it was up to them to determine what weight
    to give it. He added that if the jury found that the accused was the originator
    of any of the calls or text messages, they could use the evidence to prove the
    factual contents of the messages.

[34]

Near
    the conclusion of his review of the evidence, just before he gave a
W.D.

instruction,  the trial judge gave the jury the following caution:

Theres one thing that you must keep in mind, ladies and
    gentlemen, particularly when you are reviewing the exhibits, particularly those
    exhibits that have the pictures from the computer that relate to the Craigslist
    erotic area section. The charges that the accused is facing here do not relate
    to any acts of prostitution of any persons whose names have been bandied about
    here. They relate solely to the allegations against the accused with respect to
    the complainant.

[35]

The
    issue before us is whether this instruction was sufficient, in the context of
    the charge as a whole.

E.

The Submissions of Counsel

[36]

The
    appellant submits that, having ruled that the Crown could adduce text messages
    about sexual services, advertisements of sexual services, and provocative
    photographs related to sexual services - many of which had no connection to the
    complainant and related to conduct outside the time frame of the indictment -
    it was incumbent on the trial judge to caution the jury that they were not to
    use this evidence to find that the accused was a bad person with a propensity
    to commit prostitution-related offences. The appellant contends that this was
    particularly necessary because: (a) the material was voluminous; (b) there was
    no attempt to vet or edit the evidence, to separate out the messages,
    photographs and notes that were relevant and temporally related to the charges;
    and (c) the nature of the material was likely to offend the jury and was highly
    prejudicial to the appellant.

[37]

This
    position was summarized in the appellants factum as follows:

This was highly prejudicial evidence of past and post charge
    conduct tending to demonstrate that the accused was a person of bad character
    with a general propensity to associate with prostitutes, commit crimes of a
    nature similar to the one in question, and therefore was a person more likely
    to have committed that [
sic
] crime in question. Without a strong
    judicial caution there was a risk that the jury would use the evidence for such
    a purpose or punish him for uncharged conduct. It is possible that propensity
    reasoning played a role in the verdict, particularly when one considers the
    absence of corroboration the Appellant knew she was under the age of 18 and the
    frail evidence of control, direction etc.

[38]

The
    appellant submits that the trial judges caution did not go nearly far enough.
    He says that in the context of the large volume of unfiltered and inflammatory
    material, there was a real risk that the jury would use the evidence to reason
    that the appellant had a general propensity to engage in prostitution-related
    activity, was a person of bad character and that they should punish him, if not
    for the crimes at issue, then for his past misconduct. He says that the need
    for such an instruction was manifest, because the danger of propensity
    reasoning had been addressed on the application to exclude the evidence and the
    Crown had acknowledged that an instruction to the jury could be used to
    neutralize the prejudicial effect of the evidence.

[39]

The
    Crown, on the other hand
,
submits that the impugned material was neither
    similar fact evidence nor evidence of propensity. It was part of the narrative
    and corroborative of the complainants evidence of what happened to her  she
    was conscripted by the appellant and placed in a pre-existing milieu of
    prostitution. She used the appellants computer to access an escort services
    website. The Crown submits that the circumstantial evidence was temporally
    related to the offences charged and corroborated the underlying relationship
    between the complainant and the appellant.

[40]

The
    Crown submits that the trial judge recognized the need for a limiting
    instruction and he gave an instruction tailored to the circumstances: reminding
    the jury that the charges against the appellant related to his relationship
    with the complainant and not to the other women in the apartment.

[41]

With
    this background, I now turn to the applicable legal principles.

F.

The Legal Principles

[42]

Evidence
    may be admissible for one purpose but inadmissible for another. Where the
    evidence relates to conduct that is extrinsic to the charges before the court,
    it may be irrelevant and inadmissible if used for one purpose, but relevant and
    admissible if used for another. The trial judge is required, as he did here, to
    weigh and balance the evidence to determine if the prejudicial effect related
    to the forbidden purpose outweighs its probative value for the proper purpose
.

[43]

The
    courts have observed in cases such as
R. v. D. (L.E.)
, [1989] 2 S.C.R.
    111, at pp. 127-128 and
R. v. J.A.T.

2012 ONCA 177, 288 C.C.C.
    (3d) 1, at para. 52, that evidence of such extrinsic misconduct carries three
    particular risks:

a.

the jury may
    conclude that the accused is a bad person and convict on the basis of
    propensity reasoning that he/she is likely guilty of the offence charged;

b.

the jury may
    seek to punish the accused for past misconduct or for conduct unrelated to the
    offence; and

c.

the jury may be
    confused, and their attention may be deflected by the analysis of the misconduct.

[44]

Courts have frequently stressed the need to inoculate the jury
    against the risks of becoming side-tracked by such impermissible reasoning. For
    example, in
D. (L.E.)
, Sopinka J., writing for the majority, observed
    at pp. 128-129:

In a case in which similar fact evidence is admitted, the
    trial judge should charge the jury in a manner that will minimize as far as
    possible the dangers referred to above. The jury should be instructed that if
    it accepts the evidence of the similar acts, that evidence is relevant for the
    limited purpose for which it was admitted. The jury must be specifically warned
    that it is not to rely on the evidence as proof that the accused is the sort of
    person who would commit the offence charged and on that basis infer that the
    accused is, in fact, guilty of the offence charged.

In the instant case, the trial judge gave the jury no such
    warning. The similar fact evidence was treated simply as part of the whole body
    of evidence on which the jury was to determine innocence or guilt. The purpose
    of the admission of the evidence was not identified and its use was not
    limited, although the trial judge advised the jury at the time the evidence was
    admitted that he would give instructions as to the use that could be made of
    it. Furthermore, the jury members were not warned that they were not to engage
    in the prohibited line of reasoning to which I have referred. I conclude,
    therefore, that the charge to the jury was not adequate.

[45]

In
J.A.T.
, Watt J.A. explained the elements of a jury instruction where
    evidence of extrinsic misconduct has been admitted 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:
B. (F.F.)
, at
    pp. 707-708 and 733-735. 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).

[46]

It
    is well settled that this kind of instruction is not confined to cases of
    similar fact evidence and is required in all cases where the dangers
    associated with bad personhood reasoning exist:
R. v. B.(C.)
(2003),
    171 C.C.C. (3d) 159 (Ont. C.A.), at para. 25. The same point was recently made
    by this court in
R. v. Chamot
, 2012 ONCA 903, 296 C.C.C. (3d) 91, at
    paras. 62-63:

The jurisprudence is clear that when there is a real risk
    that evidence properly admitted for one purpose could be used by the jury for
    an improper purpose, the trial judge must caution against that misuse of the
    evidence: see e.g.,
R. v. Corbett
,
[1988] 1 S.C.R. 670
,
    at p. 691. The risk of misuse of evidence is particularly high in cases like
    this one where the Crown alleges morally reprehensible conduct in the context
    of the long-term abuse of one or more children within a household. When a jury
    hears the kind of evidence this jury heard, the trial judge must make it clear
    that the jury cannot use the evidence to infer that the accused is a bad person
    worthy of punishment regardless of his or her culpability on the specific
    allegations. The trial judge must also tell the jury that it cannot infer from
    that evidence that because the accused is the kind of person likely to abuse
    children, he or she is therefore guilty of the specific allegations.

The jurisprudence requiring a proper limiting instruction is
    loud and clear. For example, in
R. v. B. (F.F.)
,
[1993] 1 S.C.R. 697
,
    the charges alleged that the accused had assaulted his niece over a number of
    years. Other children in the family came forward to give evidence of the
    physical abuse and brutality within the home. After explaining that the
    evidence of the accused's mistreatment of the other children was admissible to
    show the condition and atmosphere within the home and to explain the absence of
    any complaints, the court held that the trial judge should have given a proper
    limiting instruction. Iacobucci J. for the majority held at p. 734:

Given that the testimony might have a strong prejudicial
    effect on the jury and that the jury might then convict on the basis that the
    accused is a bad person of the sort likely to commit the offences in question,
    clear directions to the jury about the use they could make of the testimony
    were essential.
More specifically, the judge was required
    to explain clearly in the instructions to the jurors that they must not infer
    from the evidence that tended to show the appellant's bad character that the
    appellant was guilty because he is the sort of person who is likely to commit
    the offences in question.
[Emphasis added.]

This court has repeatedly applied the ratio from
B.
    (F.F.)
in cases like this one when properly admitted evidence inevitably
    blackened the character of the accused: see
e.g.

R. v. M. (B.)

(1998), 42 O.R. (3d) 1
(C.A.), at pp. 9-10, 14;
R. v. J.A.T.
,
2012 ONCA 177
,
290 O.A.C. 130
, at
    paras. 55, 67.

G.

Application of the Principles

[47]

I
    begin with the proposition, set out in
R. v. Bevan
, [1993] 2 S.C.R.
    599, at p. 613, that in cases such as this, where a trial judge has exercised
    his or her discretion to admit cogent but prejudicial evidence on the basis
    that the probative value outweighs its prejudicial effect, the trial judge is
    in the best position to assess the atmosphere of the trial and the effect that
    the evidence or instruction may have on a jury hearing the case [and] the trial
    judge's decision on these kinds of issues should not be lightly interfered with
    on appeal.

[48]

It
    is also well-settled that a jury must be properly instructed
,
not
    perfectly instructed. Failure to tell jurors everything they might have been
    told is not misdirection:
R. v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d)
    16, at paras. 69-70.

Likewise, the message can be given to the jury in
    different ways and the question is whether or not the instruction accomplished
    its purpose, not whether it follows a particular formula:
R. v. Smith
,
    2009 SCC 5, [2009] 1 S.C.R. 146, at para. 2.

[49]

In
    fairness to the trial judge, he received no assistance from counsel on this
    issue. There were extensive pre-charge discussions, in the course of which
    counsel were provided with the portions of the charge dealing with both the
    trial judges general legal instructions and his instructions specific to the
    charges. Neither counsel requested a caution with respect to propensity
    reasoning in relation to the evidence at issue. As this court observed in
R.
    v. J.S.
, 2012 ONCA 684, 292 C.C.C. (3d) 202, at para. 40, the failure of
    counsel to object must be accorded considerable weight in such circumstances.

[50]

Nor
    did defence counsel object after the charge. The failure of counsel to object
    is a factor that can be taken into account, but it is not determinative: see
Chamot
,
at para. 73.

[51]

Finally,
    I appreciate the context in which jury instructions are prepared, in the course
    of and immediately following a lengthy trial, in real time, without much time
    for research and calm reflection, and under pressure to keep the attention of
    the jury and complete the trial efficiently.

[52]

Having
    said that, I am satisfied that the evidence required a caution to the jury. The
    Crown and the trial judge recognized it in the context of the ruling on
    admissibility. The trial judges instruction went part way. In my view, it did
    not go nearly far enough
.

[53]

As
    I noted earlier, the Crown invited the jury to consider all the evidence that
    [the accused] has been found in possession of. This played to the perfectly
    human tendency of the jury to reason that if the appellant was found in
    possession of material relating to pimping, he must be a pimp, and to jump to
    the conclusion that he must have pimped the complainant. The trial judge did
    not tell the jury that before making any use of the evidence, they had to
    determine whether they believed the appellant when he disavowed any knowledge
    of or connection to the evidence. They should have been instructed that if they
    believed him, they could make no use of the evidence.

[54]

They
    should also have been instructed that if they were satisfied that there was a
    link between the appellant and any or all of the pictures and Craigslist

advertisements,
    the text messages, the Tinkerbell notebook and the pimping books, there were
    certain things they could use that evidence for and certain things that they
    could not use it for.  They could use it for the purposes described in the
    pre-trial ruling, namely as going to the credibility of the complainant and the
    appellant, as potentially corroborative of the complainants evidence, and as
    evidence of the appellants state of mind. They could not use it for the
    purpose of determining that the appellant was a bad person, a low-life pimp who
    exploited women and who deserved to be punished. They could not use it for the
    purpose of reasoning that because he pimped other women he must have pimped the
    complainant. They could not permit their examination of the evidence to
    distract them from the question of whether the appellants guilt had been
    established beyond a reasonable doubt with respect to the complainant specifically.

[55]

It
    seems to me that when the trial judge made his ruling on the admissibility of
    the evidence, having specifically averted to the issue of propensity reasoning,
    it would have been timely to discuss the instructions the jury should receive
    on the permissible use of the evidence as well as the advisability of a mid-trial
    instruction: see Justice David Watt,
Watts Manual of Criminal Jury
    Instructions

(Toronto: Thomson Carswell, 2005), at p. 202.

H.

The Application of the Proviso

[56]

The
    appellant submits that it was mandatory that a caution be given and this is not
    a case in which the proviso in s. 686(1)(b)(iii) of the
Criminal Code
should be applied.

[57]

The
    Crown submits that there was a fair trial and a fair charge. The trial judge explained
    the thrust of the positions of both sides and handled the central issues
    competently and fairly. The Crown submits that there is no reasonable
    possibility that the verdict would have been different had a more extensive
    caution been given.

[58]

The
    Crown bears the burden on this issue and must establish that there is no
    reasonable possibility that the verdict would have been different had the error
    not been made:
R. v. B.D.
, 2011 ONCA 51, 266 C.C.C. (3d) 197, at
    paras. 117-118;
R. v. Khan
, 2001 SCC 86, [2001] 3 S.C.R. 823, at para.
    28.

[59]

The
    Crown has not discharged its burden. The jury deliberated for a considerable
    time. They began their deliberations on Monday, April 12, 2010 at about 1:00
    p.m. The jurors deliberated late into the evening that day, all day April 13,
    2010 until late in the evening and all day April 14, 2010, until late in the
    evening, when they returned with their verdict at 10:05 p.m. There were nine
    questions from the jury, some containing several parts. These questions were
    answered by the trial judge, who gave further instructions on some issues.

[60]

The
    jury acquitted the appellant on two counts, convicted on one and convicted of a
    lesser included offence on another.

[61]

This
    is not a case in which the evidence was so overwhelming that a conviction was
    the only possible verdict. Nor can I say that there is no reasonable
    possibility that the verdict would have been different had the jury been
    properly charged concerning the use they should make of the evidence. There was
    a clear credibility contest between the appellant and the complainant and there
    was a real risk that the jury would use the evidence, not to test the
    credibility of these two witnesses, but to convict the appellant because he was
    a bad person, a pimp who prostituted other women.

I.

Conclusion

[62]

For
    these reasons, I would allow the appeal on this ground and order a new trial.
    It is therefore unnecessary to consider the other grounds of appeal or the
    sentence appeal.

Released:  RAB                               G.R.
    Strathy J.A.

SEP 18 2013                                    I agree
    K.M. Weiler J.A.

I
    agree R.A. Blair J.A.

[1]

Ruling on s. 8
Charter
Breach Issues
    and s. 24(2) Exclusion Application, 2010 ONSC 3202; Ruling on Pre-Trial Motion Respecting
    Exclusion of Certain Evidence, 2010 ONSC 3200; Ruling on Pre-trial Motion
    Respecting Exclusion of the Evidence or Part Thereof on Video Recording made
    Pursuant to Section 715.1 C.C., 2010 ONSC 3201; Ruling on Defence
    Cross-examination of Complainant on Previous Sexual Acts, 2010 ONSC 3203.


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. Stewart, 2013 ONCA 579

DATE: 20130926

DOCKET: C55686

C55956

Hoy A.C.J.O., Rosenberg and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Blair Stewart

Appellant

Blair Stewart, in person for the conviction appeal

Joseph Di Luca, for the appellant on the sentence appeal

Michael Bernstein, for the respondent

Heard: September 11, 2013

On appeal from the conviction entered on May 2, 2012 and
    the sentence imposed on June 20, 2012 by Justice L.M. Baldwin of the Ontario
    Court of Justice, sitting without a jury.

By the Court:

[1]

The appellant appeals from his conviction and sentence on charges of
    threatening death, assault, sexual assault and breach of probation. Baldwin J.
    sentenced the appellant to a total of 6 years imprisonment in addition to 15.5
    months pre-sentence custody. At the conclusion of oral argument the court
    dismissed the conviction appeal but allowed the sentence appeal and reduced the
    effective global sentence to three years and 8.5 months, with reasons to
    follow.

[2]

As to the conviction appeal, the case turned on the assessment of
    credibility. The appellant and the complainant had known each other for many
    years and had an intimate relationship at various times. On the date of the
    offences, however, the complainant had made it clear that she did not want the
    appellant at her home. The essential dispute was whether, after an initial
    dispute, the complainant consented to sexual activity with the appellant. The
    appellant argues that the trial judge did not properly analyze credibility
    because she made the assessment solely on the basis of the assessment of the
    character of the appellant and the complainant and failed to consider the evidence
    of additional witnesses, such as the parties son and his girlfriend.

[3]

We are satisfied that the trial judge did not err in her assessment of
    credibility and provided adequate reasons for her findings. There was physical
    evidence in the form of injuries to the complainant that confirmed her
    testimony. The trial judge was entitled to consider the history of the
    relationship between the parties in making her assessment of credibility. That
    history was directly relevant since it explained the behaviour of both parties
    and informed the credibility assessment. This was not merely an exercise in
    reasoning from character. The trial judge made brief reference to the evidence
    of the other witnesses. In the circumstances that is all that was required,
    since there was little dispute that the central issue, the nature of the
    alleged sexual assault, depended almost entirely on the evidence of the
    appellant and the complainant. Accordingly, the appeal from conviction is
    dismissed.

[4]

As to sentence, in our view, the trial judge made several errors in
    principle. She exceeded the sentence sought by the Crown by a substantial
    amount, over two years, without giving the parties an opportunity to make
    submissions as to why the range suggested by counsel was inappropriate and failed
    to provide reasons for such a significant departure from the suggested range.
    Further, the sentence was manifestly excessive.

[5]

At trial, defence counsel sought a sentence of thirty months
    imprisonment less credit for pre-sentence custody of 15.5 months. Crown counsel
    sought a sentence of 5 years less credit for pre-sentence custody. Both counsel
    relied upon this courts decision in
R. v. B.R.
(2006), 81 O.R. (3d)
    641, where the court upheld a sentence of 30 months imprisonment for a sexual
    assault arising out of a domestic relationship. Crown counsel sought a higher
    sentence in the appellants case because of his record for offences of domestic
    violence involving this same complainant. Another helpful case in fixing the
    range for these types of offences is
R. v. Smith
(2011), 274 C.C.C.
    (3d) 34 (Ont. C.A.), which suggests a range of 21 months to four years for
    cases of forced sexual intercourse with a former spouse.

[6]

We agree with the submissions of Crown counsel at trial that a global
    sentence in the range of five years less credit for pre-sentence custody was
    appropriate. A sentence greater than those imposed in
B.R.
and
Smith
was required given the history of abuse in this relationship, even though the
    earlier offences were less serious and involved much shorter periods of
    imprisonment. On the other hand, there was also reason to give some emphasis to
    rehabilitation. After many years of drug and alcohol addiction, the appellant
    had discontinued the use of illicit drugs and had substantially reduced his consumption
    of alcohol. The appellant was a skilled mechanic and had developed a plan to
    remove himself from any contact with the complainant by obtaining employment in
    Fort McMurray.

[7]

Finally, we agree with Mr. Di Luca that the trial judges offer to provide
    further written reasons should her decision be reviewed did not comply with her
    obligation to provide reasons for imposing a sentence substantially outside the
    range suggested by counsel. It would have been inappropriate to ask the trial
    judge for further reasons once her judgment was under appeal.

[8]

Accordingly, leave to appeal sentence is granted, the appeal allowed and
    the sentence on count 4 is reduced to 2 years and 8.5 months imprisonment
    consecutive and the sentences on counts 5 and 6 are made concurrent to the
    other sentences imposed. The sentences imposed on the other counts will remain.
    In the result the appellant is serving a total sentence of 3 years and 8.5
    months imprisonment.

[9]

We wish to thank Mr. Di Luca, who was retained only on the sentence
    appeal, for his assistance with the conviction appeal.

Released: AH September 30, 2013

A. Hoy A.C.J.O.

M. Rosenberg J.A.

R.J. Sharpe J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Street,
    2013 ONCA 587

DATE: 20130927

DOCKET: C56195

Hoy A.C.J.O., Rosenberg and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Charles Street

Appellant

Charles Street, in person

Emily Morton, duty counsel

Riun Shandler, for the respondent

Heard and released orally: September 10,
    2013

On appeal from the conviction entered on October 5, 2012 and
    the sentence imposed on October 5, 2012 by Justice Diane M. Lahaie of the
    Ontario Court of Justice.

ENDORSEMENT

[1]

The conviction for robbery as opposed to simple attempted theft depended
    upon the evidence of the victim that the appellant threatened him with a
    needle.  The appellant in submissions before us denies that he had possession
    of a needle.  However, the appellant did not testify at trial.  The fact that
    no needle was found was dealt with at length by the trial judge.  He accepted
    the victims evidence, explaining why he did so.

[2]

The appellant also makes submissions that the trial was unfair.  The
    record does not support this submission.  The fact that the victim may have
    been reluctant to testify and asked for the assistance of an interpreter did
    not render the trial unfair.

[3]

The appeal from conviction is dismissed.

[4]

As to sentence, the trial judge made brief reference to the appellants
    aboriginal heritage based on the material before him.  Although the trial judge
    had little information about this heritage, he did have considerable
    information about the appellants background, in particular, the central
    concern of the appellants serious addiction issues and his difficulty in
    dealing with his addiction.

[5]

The trial judge also had information about the appellants very difficult
    childhood.  Finally, he had the evidence of Ms. Mathias.

[6]

We are satisfied that the trial judge gave appropriate weight to the
    appellants background.  On the findings of the trial judge, this was a serious
    offence.  There were few mitigating factors.  There was no error in principle
    and the sentence was fit.

[7]

While leave to appeal sentence is granted, the appeal from sentence is
    dismissed.

Alexandra
    Hoy A.C.J.O.

M. Rosenberg J.A.

Robert J. Sharpe J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Yigzaw, 2013 ONCA 547

DATE: 20130911

DOCKET: C52718

Simmons, Cronk and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Yigzaw

Appellant

Brian Snell, for the appellant

Matthew Asma, for the respondent

Heard: March 26, 2013

On appeal from the convictions entered by Justice John
    Hamilton of the Superior Court of Justice, sitting with a jury, on December 2,
    2008.

Simmons
    J.A.:

A.

INTRODUCTION

[1]

Following a jury trial, the appellant was convicted of
    multiple counts of kidnapping and robbery arising from two incidents that
    occurred about two-and-one-half weeks apart at the same apartment complex in
    Toronto.

[2]

During the first incident, five young men were
    accosted by three assailants  a white man, a black man and a Spanish man  as
    they left a friends apartment building. The victims were robbed at gunpoint and
    then escorted to a nearby bank machine where they were forced to withdraw money
    to give to the robbers. Later that day, the victims told police that the robber
    alleged to be the appellant was a black man wearing dark, baggy clothes.

[3]

During the second incident, five or six young men, three of whom were
    robbed during the earlier incident, saw a large group of people as they were
    leaving their friends apartment building. Three of the young men recognized
    the white man from the earlier robbery, and the group retreated back inside the
    apartment building. The victims were accosted by one white man and two or three
    black men in the hallway outside their friends apartment. The robbers took
    money from the victims and then fled as the police were arriving. The man
    alleged to be the appellant was described as a black man with curly hair
    wearing dark clothing.

[4]

Soon after the second robbery, police arrested a group of four men they
    saw huddled together near the apartment complex  two white men, a black man
    and a black or brown man, one of whom was the appellant. No surveillance
    evidence was uncovered and no forensic evidence linked any of the four men to
    either robbery. The appellant had facial hair and was wearing distinctive
    clothing, neither of which was described by any of the victims. However, about
    a week following the second incident, four of the victims selected the
    appellants photograph and the photograph of one of the white men who was
    arrested with him from a photographic line-up.

[5]

The main issue at trial was the identity of the
    perpetrators of the offences. The appellant raises three issues on his
    conviction appeal:

i.

Were the guilty verdicts unreasonable?

ii.

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

iii.

Did the trial judge err by failing to adequately assist the jury when
    responding to their question requesting a transcript of the evidence of four of
    the witnesses who testified?

[6]

We did not call on the Crown to respond to the
    third issue raised by the appellant. Although it would have been preferable for
    the trial judge to have responded to the jurys question in a more fulsome way,
    it is apparent from the jury forepersons advice to the trial judge relating to
    this issue that the jurys real concern was not the transcripts.

[7]

For the reasons that follow, I would reject the
    appellants first ground of appeal but accept the second ground. I would
    therefore allow the appeal, set aside the appellants convictions and order a
    new trial.

B.

Background

(1)

The First Incident

[8]

The first incident happened in the early morning
    hours of October 7, 2006. Five young men  Mahmood Pobal, Nazir Alomi, Agha
    Samel, Said Ahmad Saleh and Bashir Tarin  were accosted at gunpoint by three
    men as they left a friend's apartment building. The victims
[1]
variously described the
    Spanish man as having one or two firearms: a shotgun or a shotgun and a handgun.
    They said the Spanish man demanded money.

[9]

The Spanish man directed the victims to move,
    one at a time, to an outdoor stairwell which led to a basement parking area. Mr.
    Alomi testified that he was taken to the stairwell by the appellant. The
    Spanish man pointed a shotgun at Mr. Alomis head and demanded that he take out
    his wallet.

[10]

One of the victims, Mr. Saleh, was not taken to
    the stairwell. He said the robbers took $40 from his pockets, and then told him
    he was free to leave. Soon after leaving, he called 911.

[11]

The remaining four victims were walked to a
    Scotiabank and then forced, one by one, to withdraw money from a bank machine. Mr.
    Alomi mistakenly identified the bank as the CIBC. He testified that he was
    escorted to the bank machine by the appellant. Mr. Alomi claimed that, on the
    way, the appellant told him he looked familiar and asked, Are you Afghan? Mr.
    Alomi responded, No, I never seen you before. They entered the bank, but Mr. Alomi
    had no money in his account. Mr. Alomi said they were gone for between five and
    15 minutes before walking back to the others.

[12]

According to Mr. Pobal, after all the victims
    had been taken to the bank, the Spanish man took him to a location away from
    the other robbers and victims, pointed the shotgun at his face and pulled the
    trigger several times. The shotgun did not go off, but the Spanish man told Mr.
    Pobal that he would kill him if he contacted the police.

[13]

According to Messrs. Pobal and Samel, the
    appellant was not near the attempted shooting. However, Mr. Samel testified
    that the appellant later told the victims, We cant let you go. What if you
    guys tell the cops? Were gonna have to shoot you. The appellant collected the
    victims cell phones and threw them a short distance away. Soon after this, the
    robbers fled.

(2)

The Second Incident

[14]

The second incident happened on October 24, 2006,
    at the same apartment complex as the site of the first incident.  Three of the
    five victims involved in the earlier robbery  Messrs. Pobal, Alomi and Saleh
    were accosted along with at least two other victims, Farid Abdali and Hamid
    Musafer.
[2]
The three victims of the earlier robbery recognized the white man from the
    prior incident as they were going downstairs. They ran upstairs with their
    companions to their friends apartment. Their friend called the police but did
    not let them in. The robbers came upstairs. They were comprised of: a tall
    black man wearing a mask and carrying some sort of stick (this robber was
    described as being as tall as 6 7); one or two other black men and the white man
    from the earlier robbery. According to some of the victims, during the course
    of events, the white man either revealed a handgun in the waistband of his
    pants or carried it in his hand and said his name was Mike. Although the
    white man told the victims at one point that they were free to go, the tall
    black man wearing a mask and carrying a stick demanded and obtained money. The
    assailants fled when they apparently received word that the police were on their
    way. At least two of the victims said the white man was wearing something on
    his head  a hat or a head covering called a do-rag.

[15]

As for the appellants alleged involvement in
    the second incident, Messrs. Pobal and Alomi testified that they saw him enter
    the hallway and that he asked "Who snitched?" According to Mr.
    Abdali, the appellant stuck his head through the hallway door and yelled, Whos
    snitching? whos snitching?, and then fled with the others. Mr. Saleh
    testified that the appellant was just standing in the hallway during the
    incident; the appellant did not say anything to him.

[16]

Soon after the incident in the hallway, two
    police officers approached the apartment complex. They spotted four men huddled
    together at the side of the building: two white men, one black man and one
    black or brown man. One of the police officers testified that he saw the four
    men passing things to each other; the other police officer testified that he
    heard one of the four men say, Give me the money.

[17]

The two police officers arrested the appellant and
    one other man, Dexter Gourgouvelis, on the spot. The other two men, Michael
    Chamberlin and Samir Muhamed, fled, but were chased and eventually apprehended
    by police. No surveillance video evidence was uncovered for either robbery and none
    of the four men arrested had a weapon, a mask or anything else to connect them
    with either robbery. However, according to the police evidence, at the time of
    his arrest, Chamberlin was wearing a white do-rag.

[18]

The police officers who chased Chamberlin and
    Muhamed lost sight of them briefly during the pursuit each time the two suspects
    turned a corner. After retracing their steps from the chase two or three times,
    the officers discovered a silver handgun and the broken shaft of a golf club in
    a nest-like area where five trees were growing out of the same spot. One of the
    pursuit officers explained that because a gun had been seen during the robbery,
    the officers thought it had to be somewhere along that path, tossed at either
    of the one, two split-second strides that we didnt see them. However, the pursuit
    officer also described the chase as a dead sprint and claimed the individuals
    they arrested had to be the same individuals who they began chasing because the
    timeframe during which the officers lost sight of the suspects was a matter of
    one stride in mid-sprint. Although the officer said he did not see either of
    the suspects making any hand motions toward the tree, he explained that he came
    around a turn just as the suspects were at, or past, the tree where the gun and
    golf club shaft were found.

[19]

Upon his arrest, the appellant was wearing a
    leather camouflage-coloured jacket and a Baltimore Orioles baseball cap with a
    bright orange brim and a bird logo on the front of the hat. At the time, he was
    20 years old. He was described by one police officer as having a light brown
    complexion, black hair, a short afro hairstyle, a moustache and as being 58 in
    height. His police line-up photograph portrays a moustache and a goatee.

(3)

The Photographic Line-up Identifications

[20]

On November 1, 2006, two police officers
    conducted photographic line-ups in relation to the October 7, 2006, incident with
    four of the victims. Three of the victims who participated were accosted during
    both robberies (Messrs. Pobal, Alomi and Saleh); the fourth was a victim of the
    October 7, 2006, robbery only (Mr. Samel). One of the police officers
    conducting the line-ups was the investigating officer for the October 7, 2006
    incident. Accordingly, he knew which photograph depicted the appellant. Indeed,
    because the investigating officer had only generic descriptions of the
    perpetrators of the October 7, 2006 robbery and because he knew the two
    incidents included common victims, he used the photographs of the four men
    arrested on October 24, 2006, to create four photographic line-ups, one in
    relation to each suspect. On November 1, 2006, the two police officers
    interviewed each of the four victims individually and, as part of that process,
    showed each victim the four photographic line-ups.

[21]

All four victims selected the photograph of the
    appellant as being the black robber and the photograph of Michael Chamberlin as
    being the white robber. None of the four victims positively identified any
    other suspect.

[22]

DVDs of the photographic line-up procedure conducted
    with each victim were entered as exhibits at trial. The Crown played for the
    jury the part of each DVD relating to each of the four victims selection of
    the appellant. It is unclear from the record whether the jury received the
    whole of each DVD for their deliberations.

[23]

The DVDs demonstrate that three of the four
    victims went through the photographic array in which the appellants photograph
    appeared sequentially and selected his photograph essentially when they came to
    it. The fourth victim, Mr. Samel, reviewed all the photographs before selecting
    the appellants photograph.

[24]

Although it is unclear whether the jury received
    the balance of each DVD, the DVDs show that Mr. Samel also reviewed all the
    photographs in the array in which Mr. Chamberlins picture appeared before
    selecting his photograph. Mr. Alomi initially selected a photograph in a
    different array as being the white robber. However, Mr. Alomi eventually
    identified Chamberlins photograph as depicting the white perpetrator and said
    he had been mistaken in his earlier selection.

(4)

The Victims Evidence at Trial

[25]

Five of the victims testified at trial (Messrs. Pobal,
    Alomi, and Saleh  all victims of both robberies; Mr. Samel  a victim of the
    first robbery only; and Mr. Abdali  a victim of the second robbery only). All
    made in-dock identifications of the appellant as a black person involved in the
    robbery or robberies of which they were a victim. None of the victims was able
    to provide more than a generic description of the black perpetrator they
    identified as the appellant or his clothing  in particular, none identified
    that perpetrator as having facial hair or distinctive clothing. Further, the
    victims descriptions of the height of that perpetrator varied significantly.

[26]

Mr. Pobal described the robber involved in the
    October 7, 2006 incident that he identified as the appellant as: a black male;
    around Mr. Pobals height (58), but probably a couple of inches shorter;
    skinny; around 17 or 18 years old and wearing baggy clothing. He said the
    appellant looked the same at the time of the second incident on October 24,
    2006. In cross-examination, Mr. Pobal claimed he could identify the appellant
    because he remembered his face and his skin colour. However, he acknowledged he
    did not recall details such as facial hair. When asked in-chief what he
    remembered about the appellants skin colour on October 7, 2006, he responded,
    [h]e looked black to me that day.

[27]

Mr. Alomi described the third perpetrator
    involved in the October 7, 2006, robbery as: a black male; around 6 tall,
    between 19 and 20 years old; not too skinny, not too fat; wearing dark-coloured
    clothing  a big baggy jacket, like a hoodie, baggy pants and a hat. He
    described the October 24, 2006, perpetrator he identified as the appellant as:
    a black male; wearing a dark baggy jacket and dark baggy pants and as being
    taller than he is (Mr. Alomi said he is 510 or 511 tall).

[28]

Mr. Saleh described the black perpetrator
    involved in the October 7, 2006 robbery as: a skinny black male; approximately
    58 or 59 tall; around 19-20 years old; wearing a dark blue or black jacket
    and a hat that was also dark blue or black. He was unable to remember anything
    about what the black perpetrator was wearing on October 24, 2006.

[29]

Mr. Samel described the black perpetrator
    involved in the October 7, 2006, robbery as: a black male around 59 or 510 tall;
    about 18 or 19 years old and wearing dark-coloured clothing.

[30]

Mr. Abdali described the October 24, 2006 robber
    he identified as the appellant as: about his (Mr. Abdalis) height (55 or
    56 tall), age (18 at the time of the incident) and skin colour (light brown),
    and as having curly hair.

[31]

Some victims identified the gun recovered after
    the October 24, 2006, police chase as resembling the handgun used in one or
    both robberies.

(5)

The Defence Evidence

[32]

The appellant did not testify at trial. His
    sister testified and explained that she lived in the apartment complex where
    the incidents took place. She said that the appellant visited her two or three
    times a month, often looking after her children and playing basketball in the
    center court of the apartment complex. The appellants visits were at various
    times of the day, and he sometimes stayed overnight.

C.

Analysis

(1)

Were the guilty verdicts unreasonable?

[33]

The appellant submits that the
    identification evidence was incapable of supporting a conviction, essentially for
    four reasons.

[34]

First, the victims descriptions of the black
    perpetrator alleged to be the appellant were vague and generic. Significantly, apart
    from general comments such as remembering the perpetrators face, none of the
    victims was able to provide an explanation of how he identified the appellant
    that could be tested by reference to the appellants features.

[35]

Second, in their evidence, the victims
    acknowledged making efforts to avoid looking directly at the perpetrators and
    claimed to have focused more on the robber with the gun (who was not the
    appellant).

[36]

Third, none of the victims described the perpetrator
    as having the distinguishing features possessed by the appellant  his facial
    hair and the distinctive clothing he was wearing at the time of his arrest,
    particularly a camouflage-coloured leather jacket and a bright orange-brimmed baseball
    cap. Further, Mr. Alomi, who spent the most time with the black perpetrator
    identified as the appellant, testified that that individual was taller than he
    is, while, in fact, Mr. Alomi is 510 - 511 tall and the appellant is 58
    tall. The appellant says that these features of the evidence point away from
    him as being a perpetrator.

[37]

Fourth, the appellant claims that the procedure
    used in conducting the photographic line-up was flawed. He points to the fact
    that the investigating officer knew that both the appellant and Chamberlin were
    suspects and knew which photographs portrayed them. Further, rather than being
    presented with the photographs sequentially, the victims were permitted to go
    through the photographs and compare them. In the report generated following
The
    Inquiry Regarding Thomas Sophonow:  The Investigation, Prosecution and
    Consideration of Entitlement to Compensation
(Winnipeg:
    Manitoba Justice, 2001) [
Sophonow Inquiry
],
    both factors were identified as shortcomings in line-up procedures (see also
R.
    v. Hanemaayer
, 2008 ONCA 580, 234 C.C.C. (3d) 3, at
    paras. 23 and 25).

[38]

In addition to relying on these alleged
    frailties in the identification evidence, the appellant argues that the
    circumstantial evidence and various logical inferences arising from the
    circumstantial evidence pointed away from him as being a perpetrator:

·

the group of robbers inside the apartment
    building on October 24, 2006, was made up of one white man and three black men.
    The group arrested outside the building was made up of two white men
    (Chamberlin and Gourgouvelis), a black man (the appellant), and a black or
    brown man (Muhamed);

·

the robbers had with them a handgun, a long
    metal rod or pole and a mask. The group that was arrested had none of these
    items;

·

it is illogical that the robbers, knowing that
    the police were coming, would stop just outside the building;

·

it was unlikely that Muhamed could be carrying
    something as long as a golf club shaft while being chased by the police without
    the police seeing anything in his hands;

·

it was unlikely that Chamberlin could throw away
    a gun while being chased by the police without the police noticing; and

·

it was unlikely that Chamberlin and Muhamed
    could have discarded the gun and golf club shaft while being chased by the
    police so that the items landed together in a perfect hiding spot in a cluster
    of trees, all without the police noticing.

[39]

I would not accept the appellants submission
    that the guilty verdicts were unreasonable.

[40]

Although this was an eyewitness identification
    case, the Crown's case did not rest solely on eyewitness identification
    evidence. On my review of the record, there was sufficient evidence to support the
    appellants convictions on all charges. That evidence included:

·

the photographic line-up identifications made by
    four of the victims of both the appellant and Michael Chamberlin;

·

the fact that the four witnesses who made
    pre-trial identifications of the appellant were victims of the October 7, 2006
    robbery, during which they were in the presence of the black perpetrator they
    identified as the appellant for a considerable length of time;

·

the fact that the appellant and a Caucasian male
    named Michael Chamberlin were arrested in close proximity to the crime scene
    within minutes of the October 24, 2006 incident during which a white
    perpetrator identified himself as Mike;

·

the testimony of at least two of the victims that
    the white perpetrator of the October 24, 2006 incident was wearing a do-rag and
    the police evidence that Chamberlin was wearing a white do-rag at the time of
    his arrest;

·

the testimony of the police officers who first
    spotted the four men huddled outside the apartment complex that the four men
    were passing things to each other and one of the men said, Give me the money;
    and

·

the police evidence that they recovered a
    handgun along the flight path of the two perpetrators who fled on October 24,
    2006, and the evidence of some of the victims that the handgun recovered by the
    police resembled the handgun used in both robberies.

[41]

In reaching my conclusion, I have considered the
    fact that the photographic line-up procedure adopted by the police in this case
    was imperfect. However, the photographic line-up identifications of the
    appellant were recorded on DVDs, which were available for the jurys consideration.
    Further, although the appellant relied on the fact that the investigating
    officer participated in the line-up procedure, he did not suggest that the DVD
    evidence of that procedure reveals any conduct by the investigating officer
    that was anything other than neutral. Similarly, the appellant did not argue
    that the manner of presenting the photographs to the victims deprived their
    pre-trial identifications of any probative value. I note as well that, albeit
    important tools to avoid wrongful convictions arising from faulty eyewitness
    identification, the
Sophonow Inquiry

recommendations
    are neither conditions precedent to the admissibility of eyewitness testimony
    nor binding legal dictates for the assignment of weight:
R. v.
    Pelletier
, 2012 ONCA 566, 291 C.C.C. (3d) 279, at para.
    94.

[42]

Concerning the circumstantial evidence relied on
    by the appellant, it was not incumbent on the jury to accept any of the
    inferences the appellant advances. On the contrary, the Crown relied on
    competing inferences arising from much of the same evidence, together with the
    evidence of the two police officers about what the group of four men outside
    the apartment complex were saying and doing on October 24, 2006, when they were
    first spotted by the police, to support its theory that the appellant was one
    of the perpetrators.

[43]

Having regard to the totality of the evidence
    presented at trial, in my view, the guilty verdicts were not unreasonable.

(2)

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

[44]

The second issue raised by the appellant concerns
    the adequacy of the trial judge's instructions to the jury addressing the
    dangers of eyewitness identification evidence. In essence, the appellant argues
    that, although the trial judge provided the jury with standard cautions
    relating to the dangers associated with eyewitness identification evidence and
    concerning the risks of relying on the apparent honesty of the witnesses, he failed
    to warn the jury adequately about the specific frailties in the eyewitness
    identification evidence that were present in this case, and which the appellant
    relied on as part of his unreasonable verdict argument. In addition, the trial
    judge failed to provide the jury with any instructions concerning the value of
    in-dock identifications. The appellant submits that the cumulative effect of
    these deficiencies in the trial judges instructions constitutes reversible
    error and requires a new trial.

[45]

The Crown does not dispute that the appellant
    has identified various deficiencies in the trial judges instructions relating
    to eyewitness identification evidence. However, the Crown submits that because its
    case did not rest solely on eyewitness identification evidence, the trial judge
    was entitled to considerable latitude in determining the nature of the cautions
    to be given and that, in all the circumstances, the trial judges instructions
    were adequate.

[46]

For reasons that I will explain, I would accept
    the appellants submissions.

[47]

In
R. v. Jack,
2013 ONCA 80, 294 C.C.C. (3d) 163, at paras. 12-17, Epstein J.A. provides a
    useful summary of the applicable legal principles governing jury instructions relating
    to eyewitness identification evidence:

The jurisprudence is replete with guidance about how the jury
    should be instructed in cases where identity is the issue and where, as here,
    the Crown's ability to satisfy the jury that it was the accused who committed
    the crime depends on eyewitness identification.

The dangers inherent in eyewitness identification evidence and
    the risk of a miscarriage of justice through wrongful conviction have been the
    subject of much comment. Such evidence, being notoriously unreliable, calls for
    considerable caution by a trier of fact.

It is essential to recognize that it is generally the
    reliability, not the credibility, of the eyewitness' identification that must
    be established. The danger is an honest but inaccurate identification.

The jury must be instructed to take into account the frailties
    of eyewitness identification as they consider the evidence relating to the
    following areas of inquiry. Was the suspect known to the witness? What were the
    circumstances of the contact during the commission of the crime including
    whether the opportunity to see the suspect was lengthy or fleeting? Was the
    sighting by the witness in circumstances of stress?

As well, the jury must be instructed to carefully scrutinize
    the witnesses' 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,
a 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.

Finally, the charge must caution the jury that an in-dock or
    in-court identification is to be given negligible, if any, weight. [Citations
    omitted, emphasis in original.]

[48]

I am mindful of the fact that, unlike the
    present case,
Jack
was a situation in which the
    Crowns case depended solely on eyewitness identification evidence.

[49]

Moreover, I agree with the Crowns submission
    that where the Crowns case does not depend solely on eyewitness identification
    evidence, but also includes other evidence implicating the accused, trial
    judges are to be given considerable latitude in determining the nature of the
    caution about eyewitness identification evidence to be given to the jury. In
    some cases, a general warning as to the dangers of eyewitness identification
    evidence will suffice:
R. v. Baltovich
(2004),
    73 O.R. (3d) 481 (C.A.), at para. 78.

[50]

Nonetheless, where eyewitness identification evidence
    contains significant frailties, even in situations where there is other
    evidence implicating an accused, it may be incumbent on the trial judge to
    caution the jury as to those specific frailties and not rely on a general
    boilerplate instruction:
R. v. Baltovich
, at
    para. 78.

[51]

In this case, the appellant has identified
    several important frailties in the eyewitness identification of the appellant
    as the black perpetrator in the first robbery and one of the black perpetrators
    in the second robbery to which I have already referred:

·

the generic descriptions of the black
    perpetrator and his clothing provided by the eyewitnesses;

·

the inability of any of the eyewitnesses to
    explain what features of the appellant led them to identify him as the
    perpetrator;

·

the failure of any of the eyewitnesses to
    describe the perpetrator as having any of the distinguishing features possessed
    by the appellant at the time of his arrest (facial hair; distinctive hat and
    jacket);

·

Mr. Alomis description of the perpetrator as
    being taller than he is, when, in fact, the appellant is shorter than he is.

[52]

At para. 29 of
Jack
, Epstein J.A.
    observed
that "eyewitness identification evidence has taught us to
    use discriminating scrutiny for badges of unreliability and that one such badge
    is whether a witness' description of the suspect fails to include mention of a
    distinctive feature of the accused [citations omitted]. She noted that, in
    that case, the caution provided by the trial judge:

simply advise[d] the jury to consider the impact of the
    evidence that the victims did not notice the appellant's distinctive features.
    It d[id] not caution them to take this factor into consideration together with
    the generic description they provided to the police in performing their
    critical analysis of assessing the reliability of the identification evidence
    upon which the Crown's case wholly depended.

[53]

In this case, despite the presence of circumstantial
    evidence capable of supporting the victims identifications of the appellant, in
    my view, the circumstantial evidence was not so strong as to supplant the need
    for careful instructions concerning the frailties in the eyewitness
    identification evidence in order to ensure an accurate identification of the
    appellant as one of the perpetrators.

[54]

The most compelling circumstantial evidence implicating
    the appellant was the fact that, on October 24, 2006, the appellant was
    arrested in the company of Michael Chamberlin who was wearing a white do-rag
    and who was also identified by four of the eyewitnesses as a perpetrator  shortly
     after a robbery in which a white perpetrator wearing a do-rag identified himself
    as Mike  combined with the evidence of the two police officers about what
    the four men arrested outside the apartment complex on October 24, 2006, were
    saying and doing when the officers first noticed them.

[55]

In some cases, circumstantial evidence implicating
    an accused will be so strong that evidence of mere resemblance between an
    accused and a perpetrator will be enough to complete the circle of proof and
    strong cautions about specific frailties in eyewitness identification evidence
    may not be necessary. In my opinion, the circumstantial evidence in this case
    did not reach this threshold.

[56]

Although compelling, the circumstantial evidence
    in this case did not eliminate the need for proper instructions highlighting
    the deficiencies in the eyewitness identification evidence where: the appellant
    and Chamberlin were found in the company of two other men not identified as
    perpetrators; there was no forensic evidence connecting any of the four men
    outside the apartment complex to the recent robbery; and where, unlike
    Chamberlin and one of the other men, the appellant did not attempt to flee.

[57]

In these circumstances, in my view, the trial
    judge was required to not only provide the jury with standard cautions relating
    to the dangers of eyewitness identification evidence, but also to identify for
    the jury the specific frailties in the eyewitness identification evidence that
    existed in this case. If anything, rather than bringing home to the jury some
    of the frailties that existed, the trial judges instructions minimized them.

[58]

As I have said, the trial judge gave the jury a
    standard caution concerning the dangers of eyewitness identification evidence as
    well as the risks of relying on the apparent honesty of eyewitnesses.

[59]

The trial judge also identified for the jury
    various factors they should consider in evaluating the reliability of eyewitness
    identification evidence, including:

·

the witnesses opportunity to view the
    perpetrator;

·

the nature of the descriptions of the
    perpetrator provided by the witnesses and whether they were sufficient to stir
    recognition;

·

whether the photographic line-up was conducted
    within a reasonable time following the incident;

·

whether the photographs in the photographic
    line-up were selected fairly or made the accused person stand out;

·

whether it was suggested that a perpetrators
    photograph was in the photographic line-up;

·

whether the victims were told to identify
    someone in the photographic line-up; and

·

the possibility that the victims remembered the
    appellants face because they had seen him previously in the neighborhood.

[60]

Finally, the trial judge went on to review the
    evidence of each eyewitness identification witness. During that review, he
    mentioned some of the factors that could affect the reliability of each
    witnesss identification. For example, he referred to the various witnesses
    explanations for failing to notice facial hair. He also referred to Mr. Alomis
    evidence that the black perpetrator he identified as the appellant was taller
    than Mr. Alomi is.

[61]

In my view, however, the trial judges
    instructions were not sufficient to bring home to the jury the specific
    frailties that existed in the eyewitness identification evidence in this case.
    As I have said, if anything the trial judges instructions diluted those frailties.

[62]

For example, the trial judge instructed the jury
    to consider what description was given of the suspect, especially any facial
    features that stirred recognition and pointed out that the victims had
    provided only generic descriptions of the black perpetrator.

[63]

However, the trial judge did not then identify the
    appellants facial hair or the distinctive clothing he was wearing when he was
    arrested as potentially distinguishing features in the appellants appearance at
    the time of the October 24, 2006 robbery. Rather than doing so, the trial judge
    gave the jury a somewhat confusing instruction to the effect that the absence
    of distinguishing features does not make an identification inaccurate. He said:

What description was given of the suspect,
    especially any facial features that may have stirred recognition?

On the first occasion when they spoke to the
    police, they just gave generic terms. There was a black man and a white man and
    no special features. When asked in the witness box and asked what are the
    special features of this accused, he said, Well, nothing special about his eyes
    or his nose or his mouth. So there was no distinguishing feature to point out.
    There is no scar that one might remember. Is there anything special about his
    face that would stand out? It may be that there is no distinguishing features,
    but that does not mean that the identification is not accurate. It is just the
    face that was in the memory of that person.

[64]

An instruction of this type  namely, that an
    eyewitnesss failure to identify distinguishing features of an alleged
    perpetrator does not necessarily mean that the eyewitnesss identification evidence
    is inaccurate  may not be inappropriate where a trial judge has provided a strong
    caution about the frailty of such evidence and identified the distinguishing
    features of an accused person that an eyewitness could have observed.

[65]

However, in this case, the trial judge failed to
    provide a strong caution about the failure of any of the victims to identify
    the appellants distinguishing features; he also failed to highlight those
    features for the jury. As a result, the trial judges overall instruction
    failed to properly convey the degree of caution to be exercised by the jury
    when assessing the eyewitness identification evidence. In addition, the trial
    judge made no reference, in his instructions on eyewitness identification
    evidence, to Mr. Alomis testimony that the black perpetrator he identified as
    the appellant was taller than he is or to the police evidence indicating that
    the appellant is, in fact, at least two inches shorter than Mr. Alomi.

[66]

Given that Mr. Alomi spent the most time with
    the black perpetrator alleged to be the appellant, this discrepancy between Mr.
    Alomis description of the black perpetrator he identified as the appellant and
    the actual appearance of the appellant cannot be characterized as
    insignificant. It was therefore incumbent on the trial judge to alert the jury
    to the fact that, in assessing the reliability of the eyewitness identification
    evidence, they should consider any discrepancies between the eyewitnesses
    descriptions of a perpetrator and the actual appearance of the person
    identified as the perpetrator.

[67]

The fact that the trial judge referred to Mr.
    Alomis evidence about the perpetrators height when summarizing his evidence, or
    that defence counsel referred to the issue in his closing, are not answers to
    this problem. A jury should be cautioned by the trial judge about the need to
    consider this type of discrepancy when considering the reliability of
    identification evidence.

[68]

Further, although the trial judge told the jury
    that one of the inherent frailties of eyewitness identification evidence is the
    fact that mistaken identifications can be made by witnesses who are honest and
    convinced, absolutely sure of their identification, he may well have
    neutralized the effect of this warning when summarizing the eyewitness
    identification evidence.

[69]

In particular, in his summaries of the evidence
    of four of the eyewitnesses, the trial judge repeated, without qualification,
    their testimonial assertions that they had correctly identified the appellant. For
    example, in his summary of Mr. Pobals evidence, the trial judge said, in part:
    It was suggested to him by the defence that he is not certain that it was the
    accused. He said: This particular person I remember 100%.

[70]

When the trial judge provided his initial
    caution to the jury about the honesty and certainty of eyewitness
    identification witnesses, he did not link that instruction to any particular
    evidence. By uncritically repeating evidence from four of the eyewitnesses
    asserting their certainty in their identifications, the trial judge may well have
    invited the jury to ignore his earlier warning.

[71]

The trial judge also failed to caution the jury
    that in-dock identifications are generally to be afforded little weight (see
R.
    v. Hibbert
, 2002 SCC 39, [2002] 2 S.C.R. 445, at pp.
    468-469,
R. v. Pelletier
, at para. 93).
    Moreover, when setting out the Crowns position, he noted that the Crown relied
    on the fact that the appellant was picked out of the line-up and visually in
    court. Once again, the trial judge may have invited the jury to rely on evidence
    that was of no probative value. The potential for prejudice existed not only
    because of the combined impact of five in-dock identifications, but also
    because Mr. Abdali did not make a pre-trial identification of the appellant.
    His evidence, in particular, should have been the subject of a forceful in-dock
    identification caution: see
R. v. Tebo
(2003),
    175 C.C.C. (3d) 116, at para. 20.

[72]

Finally, although the trial judge gave the jury
    some instructions about how to evaluate the photographic line-up identification
    evidence, he did not refer to the importance of the eyewitnesses reviewing the
    photographic line-up sequentially, without taking the opportunity to compare
    photographs. He therefore did not provide the jury with all the tools necessary
    to properly evaluate that evidence. The fact that witnesses may have been
    cross-examined about that issue, or that defence counsel may have referred the
    jury to that factor, does not overcome the need for a judicial instruction
    where the need for caution arises, at least in part, as a matter of judicial
    experience and not solely as a matter of common sense.

[73]

Having regard to all the circumstances, I would
    accept the appellants submission that the cumulative effect of these errors in
    the trial judges instructions amounts to reversible error and requires a new
    trial. As I have said, although there was evidence in this case in addition to
    the eyewitness identification evidence capable of implicating the appellant in
    the two sets of offences, in my view, that evidence was not so strong as to
    supplant the need for careful instructions on the specific deficiencies that
    existed in the eyewitness identification evidence.

D.

Disposition

[74]

Based on the foregoing reasons, I would allow
    the appeal, set aside the appellants convictions and order a new trial.

Released:

SEP 11 2013                                    Janet
    Simmons J.A.

EAC                                                I
    agree E.A. Cronk J.A.

I
    agree E.E. Gillese J.A.

[1]

Mr. Tarin did not testify at trial and the trial judge
    instructed the jury to acquit the appellant on the charges that related
    specifically to Mr. Tarin.

[2]
Mr.
Musafer did not testify at trial. Mr. Pobal identified Mr.
    Musafer as one of the persons present during the October 24, 2006 incident. The
    victims of the second incident who testified were somewhat uncertain about
    exactly who was present during the second incident.