COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cesar, 2016 ONCA 890

DATE: 20161124

DOCKET: C58004

Blair, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rosny Cesar

Appellant

Howard L. Krongold, for the appellant

Tracy Kozlowski, for the respondent

Heard: March 31, 2016

On appeal from the conviction entered by Justice Robert
    J. Smith of the Superior Court of Justice on February 1, 2013, sitting with a
    jury.

Tulloch J.A.:

A.

Introduction

[1]

The appellant was charged with murder, but convicted of manslaughter, after
    a bar fight in which he stabbed a man five times and killed him.

[2]

At trial, the appellant said that he was provoked. He also argued that
    he killed the victim, Danny Trineer, in self-defence.

[3]

To support that defence, the appellant sought to adduce a hearsay statement
    of a paramedic who attended the scene. The paramedic told police that he heard
    one of the persons he treated say words to the effect that not the victim, but
    the other guy was getting beaten up... he wasnt winning the fight. And since
    he was under, thats when he got his knife out and would have stabbed the
    other.

[4]

The appellant wanted to use that statement to prove that the version of
    events described in it was true. He also wanted to prove that the statement was
    made by Christian Sauvé, a bouncer at the bar and friend of the deceased, to
    impeach Sauvés testimony at trial.

[5]

The trial judge dismissed his application to adduce that evidence.

[6]

On appeal, the appellant argues that the trial judge erred in doing so.

[7]

He also argues that the trial judge erred by failing to leave the
    defence of accident to the jury, when, in his view, there was an air of reality
    to it.

[8]

For the reasons that follow, I would dismiss his appeal.

B.

Background

[9]

The appellant and Trineer met at a bar in Hawkesbury late on a Friday
    night in September 2010.

[10]

The
    appellant was there with his girlfriend and her friend. They arrived at about
    12:40 a.m. and went upstairs to the nightclub area of the bar.

[11]

Trineer
    was in the nightclub area of the bar at that time, accompanied by two female
    friends, and his sister. Trineer had worked as a bouncer at the bar and was
    good friends with many of the bouncers who worked there.

[12]

About
    five minutes later, the appellants girlfriend and one of Trineers friends
    started arguing. The appellant, who is black, tried to intervene. At this time,
    he says that Trineer came close to him and said, You Nigger, did you come here
    to take my place? The appellant said that Trineer then told him that he was
    not from here and threatened to shoot him and his girlfriend. Some bouncers
    intervened.

[13]

The
    appellant decided to go home, but his girlfriend wanted to stay and dance. He
    left her behind, telling her he would come back later. He was upset. It was
    about 12:51 a.m.

[14]

Once
    home, the appellant testified that he decided it was a bad idea to have left
    his girlfriend behind. He grabbed a kitchen knife, allegedly for self-defence,
    put it in the pocket of his pants, and drove back to the bar.

[15]

Before
    the appellant returned, his girlfriend got involved in another altercation. She
    was trying to drink a beer on the balcony. Two bouncers, Yves Pépin and
    Christian Sauvé, tried to remove her from the bar. She was pushing and hitting
    them. When she kicked Pépin in the stomach, Trineer intervened. He and Sauvé
    carried her down the stairs by her arms and legs. They placed her down outside.

[16]

The
    appellant returned to find his girlfriend crying in the parking lot. He went
    straight to her. She told him that the bouncers had almost undressed her in
    front of everyone and that one of them punched her in the head.

[17]

The
    appellant confronted the bouncers. While doing so, his girlfriend pointed out
    Trineer, who was crossing through the parking lot. She told the appellant that
    he was the one that grabbed the beer bottle from out of her mouth. She and the
    appellant went to confront Trineer, but two bouncers stood in the appellants
    way.

[18]

The
    appellants girlfriend went ahead and started yelling at one of Trineers
    friends. She started hitting Trineer in the chest. Trineer then took her down,
    allegedly pushing her face into the ground.

[19]

The
    appellant then ran towards Trineer to punch him. The accounts of what happened
    next diverge.

[20]

According
    to the appellant, a bouncer then jumped on top of him before he reached Trineer
    and put him in a chokehold. Trineer then started punching him in the face. He
    was scared. He drew his knife during the struggle. The defence acknowledged
    that the appellant must have stabbed Trineer, although the appellant stated
    that he had no idea how it happened.

[21]

Other
    witnesses, most of whom were friends with Trineer, contradicted the appellants
    version of events. Sauvé said that he placed himself between the appellant and
    Trineer to intervene, but Trineer said that he could handle it. Both
    adversaries stood with their fists clenched, when in a matter of seconds, the
    appellant drew a knife and stabbed Trineer. Sauvé testified that Trineer never
    connected with any of his punches. Dominic Séguin-Potvin, another bouncer, said
    that he saw the appellant with the knife, which he thought was a gun at first. He
    yelled, hes got a gun. A few seconds later, Séguin-Potvin said the appellant
    lunged at Trineer with the knife and stabbed him.

[22]

One
    of Trineers friends said she saw the appellant punch Trineer. She said that
    Trineer tried repeatedly to hit him back, but that it did not appear that any
    of his punches landed.

[23]

None
    of the witnesses described the appellant being held by a bouncer, or pummelled
    by Trineer, before the stabbing took place.

[24]

Sauvé
    intervened to break up the stabbing. He grabbed the appellant with one hand as
    Trineer was still struggling to try to hit him, and grabbed the knife with the
    other. Sauvé cut his hand doing so. He threw the appellant to the ground, where
    they rolled around. The appellant bit Sauvé on the arm and then fled the scene.
    Later that night, the appellant turned himself in to police.

C.

Issue #1  Use of The paramedics statement

[25]

A
    paramedic who attended at the scene, Daniel Lacelles, recounted to police a
    version of events that a bouncer, allegedly Sauvé, told him shortly after the
    stabbing. The paramedics recounted version of events contradicted Sauvés testimony
    at trial. And that recounted version of events was a more favourable one to the
    appellant than that given by other witnesses, including Sauvé.

[26]

Not
    surprisingly, the appellant wanted to put the paramedics statement before the
    jury. However, as an out-of-court statement adduced for the truth of its
    contents, that statement was hearsay, and presumptively inadmissible.

[27]

The
    trial judge dismissed the appellants application to admit the paramedics
    statement. He concluded that the paramedics recounting to police of what was
    said to him was so unreliable that it could not be safely proven that Sauvé
    did, in fact, make such a statement to him.

[28]

I
    would not interfere with that holding. Since it could not be proven that Sauvé
    made the alleged statement to the paramedic, it follows that the version of
    events described therein could not be admissible for the truth of its contents
    or used to impeach Sauvés credibility. I would therefore dismiss this ground
    of appeal.

(1)

Facts

[29]

The
    paramedic did not witness the stabbing first-hand. He arrived at the scene
    shortly after it happened. This was sometime around 1:00 a.m. There, he
    assisted two colleagues with Trineer and then rode in the ambulance with them
    to the hospital.

[30]

The
    stabbing took place on a Friday night. On Sunday morning at about 9 a.m.,
    roughly 32 hours later, the paramedic gave a statement to police. That
    statement included the following:

He told me that he worked at the Déjà Vu. And he told me that
    the story about  the event having started upstairs. They threw a girl out. And
    the guy lying on the ground would have helped escort the lady out because he
    had previously worked at the Déjà Vu with him. And then, when they went back
    out to the parking, with another girl that was involved in the incident
    upstairs, the other girl is still outside in the parking. And I could
    understand that her friend  her boyfriend  this is when the fight started.
    And then he told me
at some point more or less  not the victim, but the
    other guy, was getting beaten up. He was  he wasnt  he wasnt winning the
    fight. And since he was under, thats when he got his knife out and would have
    stabbed the other.
He said that himself didnt see the knife at first. And
    when he saw that the other guy fell, this is when he saw the knife in the hands
    of the other guy and he tried to remove it from him. And this is how he cut his
    hand. [Emphasis added.]

[31]

On
    the
voir dire
at trial, the paramedic testified that he remembered that
    he spoke to police after the stabbing, that the events were fresh in his mind
    at the time, and that he was being truthful.

[32]

However,
    he said that he had no independent memory of what he talked about in that
    statement. He testified that he had no memory of any conversations with Sauvé
    at all, and that he would not recognize him if he saw him with ten other people
    in the courtroom. Nor could he recall if the conversation was in English or in
    French. And he could not say where he would have spoken to Sauvé, whether at
    the hospital or at the scene.

[33]

The
    paramedic testified that maybe he could have become confused. He explained that
    the scene was very chaotic. He would have spoken to about 10 different people
    there. They were all providing him with information about what had happened. He
    said he received a lot of information while at the scene.

[34]

The
    paramedic did not take any notes of his conversation with the bouncer. He
    acknowledged that what he said to police was not a word for word account of
    what he heard. The statement was not given under oath, and the paramedic was
    not warned of the consequences for giving false information. His purpose for
    speaking to police was to help them make further inquiries.

[35]

Sauvé
    acknowledged that he spoke to a paramedic. But, when cross-examined about what
    he said, he denied giving the version of events recounted by the paramedic:

Q. Do you recall speaking to one of the ambulance attendants?

A. At Déjà Vu, not at the

Q.  At Déjà Vu?

A. Yeah.

Q.  Okay. And he looked at your hand, correct?

A.  Thats correct. And then he told me to go to the hospital
    and I said, No, just go worry about my friend right now.

Q. Okay. And he had asked you what happened to your hand?

A.  I dont recall that, no.

Q. Do you recall talking to him about what had happened in the
    fight?

A. Yes. That my friend was stabbed.

Q. Do you recall telling him that not the victim but the other
    guy had been punched?

A. I dont recall that, no.

Q. You dont recall telling him that Mr. Cesar had been
    punched?

A. Thats correct.

Q. Did you recall telling him that Mr. Cesar didnt have the
    upper hand in the fight?

A. No.

Q. Do you recall telling him that Mr. Cesar ended up underneath
    and thats when he took out the knife and stabbed the other guy?

A. I never said anything like that, no.

Q. I understand that this fight happened very quickly?

A. Thats correct.

Q. And you can disagree with me on what Im about to suggest to
    you, thats fine, I expect you might. Is it possible that Danny Trineer, one of
    his punches connected with Mr. Cesar?

A. I do not agree, no.

[36]

The
    recorded statement was the only evidence the appellant could rely on that such
    a conversation ever occurred. That is because the paramedic had no present
    recollection of his alleged conversation with Sauvé, and Sauvé denied that he
    ever said what was contained in that statement.

(2)

Discussion

[37]

Hearsay
    evidence is defined not by the nature of the evidence
per se
, but by
    the use to which the evidence is sought to be put: namely, to prove that what
    is asserted is true:
R. v. Starr
, 2000 SCC 40, [2000] 2 S.C.R. 144, at
    para. 162.

[38]

Here,
    the appellant sought to put the paramedics out-of-court statement to two
    hearsay uses.

[39]

First,
    he wanted to prove that Sauvé actually gave the version of events to the
    paramedic that was recounted in the paramedics statement. In this way, he
    could argue to the jury that Sauvé was not a credible witness since he gave a
    different version of events at trial. This manner of impeachment is set out
    under s. 11 of the
Canada Evidence Act
, R.S.C. 1985, c. C-5

[40]

Second,
    he wanted to prove that the version of events described in the paramedics
    statement was what actually happened. This would help his self-defence claim.
    That is because that version, unlike the one given at trial by Sauvé and
    others, indicated that the appellant was losing the fight and was under when
    he took out the knife and stabbed Trineer.

[41]

This
    second use, however, involved two levels of hearsay: the first being the paramedic
    recounting what Sauvé said to him; the second being Sauvé recounting to the
    paramedic what he witnessed during the fight. This is sometimes referred to as
    double hearsay. For this double hearsay use, each level of double hearsay
    must fall within an exception, or be admissible under the principled approach:
Starr
, at para. 172.

[42]

Thus,
    before the appellant could prove the second level of hearsay  that Sauvés
    version of events recounted in the paramedics statement was what actually
    happened  he had to be able to prove that Sauvé actually gave that version of
    events to the paramedic in the first place.

[43]

The
    trial judge refused to admit the recorded statement for either hearsay use.

[44]

On
    appeal, the parties fundamentally disagree about how the trial judge resolved
    the appellants application. The resolution of that disagreement plays a large
    role in the determination of this issue on appeal.

[45]

The
    appellant claims that the trial judge found that the first level of hearsay
    the paramedics recounting of what he heard said  fell under the past
    recollection recorded exception to hearsay. Having done so, the appellant says
    that the trial judge erred by refusing to allow him to impeach based on the
    statement.

[46]

The
    appellant further argues that the trial judges principled approach analysis
    was flawed. For the most part that is because, having accepted that the first
    level of hearsay fell under the past recollection recorded exception, he
    treated the paramedic as the declarant of the statement, and not Sauvé. Had
    Sauvé been treated as the declarant, he says, the evidence would have been
    found to be sufficiently reliable.

[47]

The
    Crown, on the other hand, says that the trial judge never accepted that the
    first level of hearsay was admissible, and that he was entitled to so hold. On
    that basis, the trial judge properly dismissed the appellants application.

[48]

In
    my view, the Crowns interpretation of the trial judges resolution of this
    issue is the correct one. The trial judge never found that the relevant portion
    of the paramedics statement was admissible.

[49]

Reading
    the trial judges reasons as a whole, it is evident that he dismissed the
    application because he determined that the first level of hearsay was not
    admissible.

[50]

Contrary
    to the appellants contention, he did not accept that the paramedics
    recounting of Sauvés statement satisfied the past recollection recorded
    exception. His disposition under that ground makes this clear. He stated that
    the paramedics statement would only be admissible as a past recollection
    recorded for statements contained therein
other than the hearsay statements
    contained therein made to him by Christian Sauvé
 (emphasis added).

[51]

Without
    affirming the trial judges reasoning and analysis in arriving at that
    conclusion, we accept that his primary concern was about the reliability of Sauvés
    hearsay statement to the paramedic as recounted to the police by the
    paramedic.  This was a proper concern because [t]he past recollection recorded
    is grounded in a concern for reliability:
R v. Richardson
(2003), 174
    O.A.C. 390 (C.A.), at para. 34.

[52]

In
    the trial judges view, the conversation between Sauvé and [the paramedic]
    occurred in very unreliable circumstances and was not recorded in a reliable
    way. His reasons for arriving at this conclusion are repeated in several
    places, but are perhaps best summarized in the following excerpt:

However, [the paramedics] statement to the police on September
    the 5th of 2010 contains unreliable hearsay, which was not accurately recorded
    by [the paramedic], namely, his recollection of an oral statement made to him
    by Christian Sauvé, that he heard while administrating care to a critically ill
    victim, where he did not make notes of what was said, where he received information
    from ten other people at the scene and where the circumstances were chaotic,
    stressful and where his primary objective and concern was to provide care to
    the seriously injured victim and not to record exactly what had happened or
    what he was told.  His statement is also not a word for word account.  In
    addition, I note, [the paramedic] does not appear to have a very good memory.

[53]

In
    short, although the trial judge accepted that the video statement was an
    accurate statement of what the paramedic told the police, he was not persuaded
    that it contained an accurate and reliable record of what Sauvé told the
    paramedic. The issue was not whether what the paramedic told the police was
    reliably
recorded
. The issue was whether
    what Sauvé told the paramedic was reliably recounted.

[54]

To put it another way, the trial judges reasons demonstrate that
    the record did not satisfy him that the paramedics statement was made
while the event was sufficiently fresh in the witness's mind to be
    vivid and likely accurate, a condition for past recollection recorded set out
    in

Richardson
, at para. 24
.

[55]

Arguably, it also did not satisfy the present
    voucher as to accuracy condition, given the paramedics acknowledgment that he
    may have been confused at the time, among other things.

[56]

The
    trial judges disposition on whether the statement qualified under the
    principled approach also came down to the unreliability of the paramedics
    account. He stated that I therefore find that [the paramedic]s hearsay
    evidence of what he was told by Christian Sauvé ... does not meet the threshold
    reliability required for admission under the principled exception to the
    Hearsay Rule. His reasons on that ground again focussed on the unreliable
    nature of the paramedics statement, as reviewed above.

[57]

In
    arriving at this determination, he also took into account the fact that,
    although the paramedic was available for cross-examination, cross-examination
    would not be useful or meaningful because the paramedic admitted he had no
    memory of either his statement to the police or of the oral statement made to
    him by Sauvé. The trial judge also considered the principle that a court has a
    residual discretion to relax a strict rule of evidence in favour of permitting
    an accused to call evidence where the justice of the case requires it: see
R.
    v. Folland
(1999), 132 C.C.C. (3d) 14 (Ont. C.A.).

[58]

However,
    in the end, as noted above, the trial judge declined to admit the unreliable
    hearsay evidence of Sauvés statement to the paramedic under the principled
    exception to the hearsay rule on trial fairness grounds. It did not meet the
    threshold reliability required under the principled approach. He also found
    that its probative value was very low and was outweighed by the prejudicial
    effect of presenting such unreliable, untested, and untestable evidence to the
    jury. This was his call, and I see no error in fact or law in the trial judges
    determination on this issue.

[59]

The
    trial judge also relied on the unreliability of the paramedics account when
    disposing of the spontaneous utterance exception to the hearsay rule and in
    determining whether the statement could be used to impeach Sauvés testimony
    under s. 11 of the
Canada Evidence Act
. His conclusions that the
    paramedics statement was not admissible as a spontaneous utterance given at
    the time, and that the statement could not be used to impeach Sauvés trial
    testimony, are supported by the same reasoning referred to above.

[60]

In
    short, the trial judge consistently found that the first level of hearsay  the
    paramedics account of Sauvés alleged statement  was not sufficiently
    reliable to be admissible. On appeal, deference is owed to a trial judges
    determination of threshold reliability for hearsay, unless his or her
    determination was tainted by an error in principle:
R. v. Youvarajah,
2013
    SCC 41, [2013] 2 S.C.R. 720, at para. 31. There was no such error here.

[61]

Accordingly,
    I would not interfere with the trial judges exclusion of the paramedics
    statement for either hearsay use.

D.

Issue #2  the defence of accident

[62]

The
    jury was charged on self-defence under s. 34(2) of the
Criminal Code
,
    R.S.C. 1985, c. C-46, which applied at the time of the altercation, and on the
    partial defence of provocation.

[63]

But
    the appellant argues that the trial judge erred by failing to charge the jury
    on the defence of accident as well. Despite not advancing this defence at
    trial, he claims that it had an air of reality. Thus, it ought to have been
    left with the jury.

[64]

In
    particular, he says that the jury should have been charged that the stabbing
    was an unintended act. While he concedes that he intentionally drew the knife,
    his testimony, he says, was essentially that the stabbing was an accident.

[65]

Of
    course, if he accidentally caused Trineers death while intentionally engaging
    in an unlawful and objectively dangerous act, he would still be guilty of
    manslaughter:
R. v. Parris
, 2013 ONCA 515, 300 C.C.C. (3d) 41, at para.
    108. The failure to charge on accident could be said to be harmless then.

[66]

The
    appellant counters by arguing that the act of pulling the knife could be
    justified as self-defence under s. 37 of the
Criminal Code
, rendering it
    a lawful act. If the jury found that the drawing of the knife was a lawful act
    and that the following stabbings were accidental, it would lead to an
    acquittal.

[67]

I
    would dismiss this ground of appeal. In my view, there was no air of reality to
    the defence of accident.

(1)

Facts

[68]

The
    basis for the defence of accident comes from the appellants testimony.

[69]

The
    appellant testified that he ran towards Trineer to punch him. He says that when
    he tried to punch Trineer, one of the bouncers jumped on his back and put him
    in a choke hold. Trineer then, according to the appellant, began punching him
    in the head like a punching bag. The appellant testified that he was afraid
    and having trouble breathing.

[70]

The
    knife came out, the appellant believes, at some point while he was being held,
    with Trineer moving towards him. He claimed to have no idea how Trineer came to
    be stabbed:

Q. Did you intend to strike Mr. Trineer with the knife?

A. No, I just wanted  the other one came out on me, I dont
    know how he got stabbed, I have no idea.

Q. Would you agree that ultimately youre the one who did stab
    Mr. Trineer?

A. I  I cant tell you because me I was struggling, maybe I
    took it out and  I was struggling, I have no idea.

[71]

The
    forensic evidence and other witness accounts provide some further context for
    this ground.

[72]

Five
    stab wounds were found in the deceaseds body. Two were less serious: a
    five-centimetre wound to the right side of the back, and another to the
    top-right upper arm. The other three were in the left side of the chest, and
    were each life-threatening.

[73]

The
    chest wounds caused Trineers death. Two pierced the left lung, one of which
    went twelve centimetres into the chest, causing the left lung to collapse. The
    third chest wound cut through the main blood vessel in the chest, the aorta.
    This wound was not survivable.

[74]

The
    close proximity of the three chest wounds suggested that the deceased did not
    move much between each wounding.

[75]

Of
    all the other witnesses at the trial, only two testified to seeing the physical
    stabbing take place: the bouncers Dominic Séguin-Potvin and Christian Sauvé.
    Séguin-Potvin said that the appellant lunged at Trineer with the knife and
    stabbed him. He said he heard the sounds of the knife going in and out three or
    four times. Sauvé said he saw the appellant make a stabbing motion. He then
    wrapped his arm around the appellant from behind, and grabbed the knife before
    the appellant could stab Trineer again. The other witnesses views were
    obstructed at that moment, or they were not watching the fight at the time.

(2)

Discussion

[76]

The
    air of reality test governs whether a defence should be put to the jury. That
    test provides that the determination of putting a defence to the jury is based
    on whether there is evidence on the record upon which a properly instructed
    jury acting reasonably could acquit:
R. v. Cinous
, 2002 SCC 29, [2002]
    2 S.C.R. 3, at para. 49.

[77]

The
    trial judge must put to the jury all defences that arise on the facts:
Cinous
,
    at para. 51. It does not matter whether an accused advanced such a defence:
Cinous
,
    at para. 51. Nor does it matter if the defence is incompatible with defences
    advanced by the accused: see
R. v. Gauthier
, 2013 SCC 32, [2013] 2
    S.C.R. 403, at paras. 31-34.

[78]

At
    the same time, the trial judge must not put to the jury any defences that lack
    an air of reality:
Cinous
, at para. 51. As Cory J. explained,
    [s]peculative defences that are unfounded should not be presented to the jury.
    To do so would be wrong, confusing, and unnecessarily lengthen jury trials:
R.
    v. Osolin
, [1993] 4 S.C.R. 595, at p. 683.

[79]

In
    this case, the trial judge was correct not to put the defence of accident to
    the jury. It lacked an air of reality.

[80]

As
    the Supreme Court has made clear, a mere assertion by the accused of the
    elements of a defence will not be sufficient to clear the air of reality
    hurdle:
Cinous
, at para. 98. Such is the case here. The defence of
    accident would have required a finding that the appellant stabbed the deceased
    multiple times by accident: see e.g.
R. v. Cornelius
, 2011 ONCA 551, 283
    O.A.C. 66, at para. 47. Yet the evidence at trial provided no such explanation
    as to how that could have happened. The appellants full answer to whether he intended
    to strike Trineer with the knife essentially claimed that he had no memory of
    the stabbing. He offered no evidence for how he accidentally stabbed Trineer
    five times, stating I dont know, I have no idea, and I cant tell you.

[81]

No
    other witness provided evidence that would support this defence. To the
    contrary, the two witnesses that testified about seeing the stabbing both
    described the appellant making stabbing motions towards the deceased.

[82]

In
    my view, a properly instructed jury, acting reasonably, could not accept that
    the stabbings were accidental based on the factual foundation before them.

[83]

Accordingly,
    I would dismiss this ground of appeal.

E.

Disposition

[84]

I
    would dismiss the appeal.

Released: RAB NOV 24 2016

M. Tulloch J.A.

I agree. R.A. Blair
    J.A.

I agree. G. Pardu
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Charles, 2016 ONCA 892

DATE: 20161125

DOCKET: C58560 & C58521

Gillese, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gregory Charles and Carl Renous

Appellants

Michael Dineen and Gerald Chan, for the appellant Carl
    Renous

Carlos F. Rippell, for the appellant Gregory Charles

John Patton and Katie Doherty, for the respondent

Heard: September 15, 2016

On appeal from the convictions entered on November 16,
    2013 by Justice R. Cary Boswell of the Superior Court of Justice, sitting with
    a jury.

Rouleau J.A.:

A.

Overview

[1]

The central issue in this appeal is whether the jury came to an
    unreasonable verdict when it convicted both appellants of attempted murder.

[2]

The convictions rest almost exclusively on the evidence of the victim,
    James Pierre. The two appellants, Gregory Charles and Carl Renous, argue that
    Mr. Pierre hardly knew them and that, as a result, this should be viewed as an
    identification case. They submit that Mr. Pierre had little opportunity to see
    his attackers and that his evidence at trial contradicted many of the
    statements he had made earlier, including whether he was in fact able to identify
    his assailants at the time of the attack.

[3]

In addition to weaknesses in the identification evidence, the appellants
    argue that Mr. Pierres evidence was unreliable and in parts clearly
    unbelievable. In these circumstances, in the appellants view, the risk of
    wrongful conviction is high and the verdict is unreasonable.

[4]

The appellants also argue that the trial judge erred in not giving a
Vetrovec
warning, in admitting cellular telephone records into evidence and in his treatment
    of eyewitness identification in his charge to the jury.

B.

Facts

[5]

Mr. Pierre was the Crowns key witness in the trial of his two alleged
    assailants. He was born in Haiti and came to Canada when he was 17 years old.
    He lived in Montreal at the time of the assault. Mr. Pierre speaks Creole,
    French, English and some Spanish. He testified at trial in English and, from a
    review of the transcripts, it is apparent that he did so with some difficulty.

(1)

The assault

[6]

On November 14, 2010, the day before the attack, Mr. Pierre traveled
    from Montreal to Toronto to visit his girlfriend. This was a trip that he made
    frequently.

[7]

At around 8:00 p.m. on November 15, after visiting an acquaintance
    during the day, Mr. Pierre returned to his girlfriends home in Vaughan. It was
    a dark and rainy evening. He parked the car he was driving, a Honda Accord, on
    the street not far from the home. Shortly after entering the home, he became
    concerned that, while he was sleeping, his girlfriend might search his car and
    find that he had condoms stored in his wallet. This would suggest that he was
    seeing other women. As a result, at approximately 8:30 p.m., he went outside to
    his car to retrieve his wallet.

[8]

Just as Mr. Pierre opened the drivers side door and reached into the
    vehicle, he heard someone say his name. He looked to his right and saw two men about
    15 feet away. He recognized them despite the fact that they wore black hooded
    sweatshirts with their hoods pulled up and were approaching quickly. He was
    immediately struck on the head with a baseball bat. He fled and his two
    assailants gave chase. Mr. Pierre ran across the street toward a neighbours
    backyard. He was cornered at a fence on the neighbours property and further assaulted.
    He was struck repeatedly with the baseball bat and, according to his testimony,
    was stabbed 32 times.

[9]

Two neighbors witnessed part of the attack. Both of them recognized
    Mr. Pierre from around the neighborhood. One of them, Mr. Kreslin, heard
    banging noises against the wall of his house and went outside with his father
    to investigate. Their arrival interrupted the attack and the assailants quickly
    fled. Mr. Kreslin then called an ambulance.

[10]

Mr. Kreslin testified at trial that he saw some of the facial skin
    and eyes of one assailant who appeared to have black skin and light, possibly
    green, eyes. He thought the other man was black, as well, but acknowledged this
    may have been an assumption on his part.

[11]

Another neighbour, Mr. Ditta, came out of his house after hearing a
    scream. He saw the attackers fleeing and he unsuccessfully pursued them, after
    which he returned to attend to the injured Mr. Pierre. Mr. Ditta testified that
    he asked the gravely wounded Mr. Pierre who had injured him. Mr. Pierre
    responded by uttering a word that was unclear but sounded like Carl or
    Carlton spoken in a French or Jamaican accent. Mr. Pierre later
    testified that he was attempting to refer to Carl Renous.

[12]

Mr. Pierre suffered life-threatening injuries from the attack. He was in
    a coma for approximately two weeks. His injuries included a gash on his head,
    stab wounds all over his body and a cut to his stomach so severe that his
    intestines were spilling out. In the course of his recovery he was initially
    unable to speak and required a breathing tube. He was hospitalized for months
    in both Toronto and Montreal and required significant painkilling medication.

(2)

The investigation

[13]

On December 5, 2010, upon awakening from his coma and still unable to
    speak, Mr. Pierre attempted to identify his attackers to police in the hospital.
    He wrote down the word Kall and then nodded in the affirmative when asked
    whether he meant Carl or Carlo. He then wrote down the name Karl Atir.
    Mr. Pierre later testified that Carl Atire was a man with whom he had
    attended high school in Montreal some 14 years earlier. He told the jury that he
    wrote the name in error as a result of the effects of his medication and
    injuries. He had meant to refer to Carl Renous, whose last name he did not
    recall at that time.

[14]

The next day, with Mr. Pierres health in critical condition and his
    prognosis still uncertain, the police carried out a rough identification
    procedure. This interaction was videotaped and shown to the jury. In his
    testimony, the officer who conducted the identification procedure acknowledged
    that Mr. Pierres health made the circumstances far from ideal. He showed Mr.
    Pierre a series of 11 photographs of persons of interest, including friends and
    photographs obtained from Facebook. Mr. Pierre gestured affirmatively when
    shown the fourth picture, which was of Mr. Charles. The officer then told Mr.
    Pierre that the photograph was of Mr. Charles and asked him to confirm whether
    the identified person had been involved in the attack. Mr. Pierre again
    gestured affirmatively. This photograph was subsequently lost but it is visible
    in the videotape. The 11 photographs are of various sizes and a review of the
    videotape shows that, of the 11 photographs, Mr. Charles photograph was by far
    the largest. No photograph was included of Mr. Renous.

[15]

On December 13, 2010, police attended the hospital again. Mr. Pierre
    still could not speak. During the interaction, which was also videotaped, an
    officer showed two photographs to Mr. Pierre: one of Mr. Charles and one of
    another man. Mr. Pierre motioned toward the photograph of Mr. Charles. He
    mouthed yes when asked a leading question, namely whether Mr. Charles goes by
    the name Carl or Carlito. However, there was no evidence suggesting that
    Mr. Charles ever used those nicknames. Mr. Pierre later testified that
    this mistake was, again, the result of his grave medical condition and heavy
    medication.

[16]

On January 24, 2011, Mr. Pierre was able to speak to police for the
    first time from a hospital bed in Montreal. At one point, he appeared to state
    that he could not see who attacked him but he denied this at trial. It is
    during this interaction that Mr. Pierre first named Carl Renous to police as
    one of his assailants. He later testified in a
voir dire
that he only
    recalled Mr. Renous full name after he was reminded of it by a visitor to his
    hospital room whose identity he could not recall; that evidence was not
    presented to the jury. During the same hospital visit, police also took a
    statement from Mr. Pierre in which he identified a Greg as an assailant whom
    he recognized.

[17]

The next day, on January 25, 2011, police conducted a second photograph
    line-up at the hospital. This interaction was again videotaped. Mr. Pierre was
    shown a different photograph of Mr. Charles from the one used on December 6, in
    response to which he stated yeah, thats Greg but he still could not provide
    a last name. Again, no photograph was included of Mr. Renous.

[18]

Cellular telephone records for Mr. Charles were obtained by police and
    reviewed on June 14, 2012, well after the preliminary hearing and while
    judicial pre-trial hearings were being conducted in the Superior Court. Mr.
    Charles had provided this telephone number to his probation officer in a
    voicemail message just weeks prior to the attack, on October 27, 2010. The
    records, based on cell tower locations, place Mr. Charles in south Toronto near
    The Queensway at around 5:00 p.m. on the day of the attack. At 7:26 p.m., less
    than an hour before the attack, the phone made a call that lasted 227 seconds
    and accessed two towers in Vaughan. The next traceable call was made at 9:33
    p.m. and placed the phone back in the south part of Toronto, this time in
    Etobicoke south of the Islington subway station.

(3)

Mr. Pierres identification at trial

[19]

Mr. Pierre testified at trial that he recognized his assailants as two
    men he knew from Montreal, the appellants Carl Renous and Gregory Charles.

[20]

He told the jury he first met Mr. Renous about eight years earlier in a
    mall in Montreal. At the time of the attack, he recalled Mr. Renous first name
    but not his last, although he had heard people say his full name before. After
    first meeting Mr. Renous, Mr. Pierre estimated he had seen him less than
    20 times and that they had greeted each other on about 10 occasions. Mr. Pierre
    stated that Mr. Renous had once visited his home and that he had seen him
    three or four times in the six months leading up to the attack, including at a
    Toronto nightclub on the night before the attack.

[21]

Mr. Pierre testified that he met Mr. Charles four years before the
    attack. They would greet each other occasionally on the street. Around a year
    prior to the events of November 15, 2010, Mr. Charles twice called Mr. Pierre
    on the telephone to invite him to nightclubs but Mr. Pierre did not attend.

[22]

Mr. Pierre always spoke in Creole with both appellants. He described
    himself as friends with neither of them.

[23]

Mr. Pierre told the jury that he was able to recognize his attackers
    multiple times and at different locations during the attack. He testified that
    he could see their faces when he first saw them approaching upon hearing his
    name called. Later, after fleeing to the neighbours property, he said he could
    see their faces again. He testified that he recognized the voice of Mr.
    Charles, who called his name and spoke to him during the attack, uttering
    phrases such as Im gonna kill you and this is your last day. Mr. Renous
    did not speak.

[24]

Mr. Pierre acknowledged that, some two months after the attack, when he
    first began to recover from his injuries and began to be able to speak, he was
    not able to provide detailed descriptions of his attackers appearances, such
    as their hairstyles, facial hair, pant style, jewellery, height or weight. He
    further acknowledged that, in the course of the police investigation, he had
    erroneously written the name of Karl Atire and erred in agreeing with the
    police suggestion that Mr. Charles went by Carl or Carlito. As noted earlier,
    he attributed these errors to his medication and his serious medical condition.

(4)

Mr. Pierres credibility at trial

[25]

Issues were raised by the defence with respect to Mr. Pierres
    credibility.

[26]

There was extensive cross-examination suggesting that Mr. Pierre was
    engaged in illegal and/or unsavoury activity relating to drugs, prostitution
    and managing strippers. He denied these suggestions.

[27]

He was also questioned about two previous convictions for offences of
    dishonesty, namely providing false names to police officers during roadside
    traffic stops. Mr. Pierre admitted to this and explained that on these
    occasions he provided his cousins name to police because he was driving while
    his license was suspended for unpaid fines and he wanted to avoid incurring
    further fines.

[28]

Both at trial and on this appeal, the defence noted specific aspects of
    Mr. Pierres evidence that they allege undermined his credibility and the
    reliability of his identification of the appellants:

·

Mr.
    Pierres description of his legitimate income, running a small clothing store,
    was inconsistent with his apparent lifestyle, which included activities such as
    frequenting expensive nightclubs and taking vacations.

·

Mr.
    Pierre was evasive about the house and expensive vehicles owned and/or leased
    by his girlfriend. He denied knowing the source of the money that she used to
    buy them.

·

Mr.
    Pierre denied receiving income from strippers or prostitution but acknowledged
    that he would sometimes drive strippers to strip clubs. Police found over 100
    condoms and a criminal record check for a woman in the Honda he was driving. Mr.
    Pierre denied knowledge of this and denied obtaining criminal record checks for
    prospective strippers or prostitutes.

·

Police
    found a receipt in Mr. Pierres wallet for a transaction executed the day of
    the attack using his credit card at a store that sells clothing for strippers.
    Mr. Pierre explained that his sister or a girlfriend may have used his card
    without his knowledge. He denied knowledge of this receipt and could not
    explain its presence in his wallet.

·

Mr.
    Pierres evidence and statements made prior to trial contained inconsistencies
    about important issues such as: what the attackers said to him; his movements
    before the attack; the extent of his prior relationship to the appellants;
    whether he was on the phone when he was attacked; when he first identified the
    appellants as his attackers; and how many other people he knew named Carl.

·

There
    were several inconsistencies between Mr. Pierres evidence at trial and
    statements made at the preliminary inquiry with respect to whether Mr. Renous
    had ever visited Mr. Pierres home, how many times he had seen him in the
    months before the attack and whether he knew Mr. Renous by his full name.

(5)

The directed verdict ruling

[29]

At the close of the Crowns case, Mr. Charles brought a motion for a
    directed verdict of acquittal. He argued that Mr. Pierres in-dock identification
    of him as an assailant should be given no weight. First, he asserted that he
    and Mr. Pierre were near strangers and so the in-dock identification was
    not sufficiently reliable. Second, he pointed to earlier problems tainting the
    identification narrative such that it would be dangerous to leave Mr. Pierres
    identification evidence with the jury.

[30]

On November 13, 2013, the trial judge issued his 41-paragraph ruling on
    the directed verdict motion:
R. v. Charles
, 2013 ONSC 7008. The trial
    judge acknowledged that the January 25 photograph line-up was suspect. However,
    in his view this was still a recognition case, albeit not the strongest one.
    Accordingly, even if no weight were attached to the January 25 photograph
    line-up, as well as to the later photograph line-up because of the possibility
    of it being tainted, there remained an in-dock identification of a person known
    to Mr. Pierre. The judge ruled that the determination of Mr. Pierres
    credibility and reliability on that issue should be left with the jury. In his
    view, if believed, Mr. Pierres evidence could support an inference of
    guilt beyond reasonable doubt. The motion for a directed verdict therefore
    failed.

(6)

The verdict

[31]

The defendants did not testify and called no evidence. The jury returned
    a verdict of guilt against both the appellants.

C.

Issues on Appeal

[32]

The following issues are raised by the appellants in this appeal:

1.

Were the convictions of Mr. Renous and Mr. Charles unreasonable?

2.

Did the trial judge err by declining to provide a
Vetrovec
caution?

3.

Was the charge to the jury sufficient with respect to eyewitness
    identification evidence?

4.

Did the trial judge err by admitting Mr. Charles cellular telephone
    number into evidence?

D.

Discussion

(1)

Were the convictions unreasonable?

[33]

The appellants emphasize that their convictions are based almost
    exclusively on the unsupported evidence of one witness, Mr. Pierre. He is, the
    appellants argue, an unsavoury witness whose evidence is highly implausible. Further,
    there is no evidence of motive and there are serious problems with the
    identification procedure that was followed by the police.

[34]

The appellants recognize that the test to demonstrate that a verdict was
    unreasonable is an exacting one, but they argue that where, as here, the
    conviction is founded on eyewitness identification, the risk of a wrongful
    conviction is heightened. History has shown that juries do not understand that
    a witness can have an honest but mistaken belief in having identified the
    attackers. The danger of a wrongful conviction is all the more present in the
    circumstances of the present case where the credibility of the key witness is
    highly questionable.

[35]

In their submission, the present case is similar to
R. v. Tat
(1997)
, 35 O.R. (3d) 641 (C.A.). In
Tat
,
    Doherty J.A., writing for the court, explained at paras. 99 and 100 why the
    court has latitude to intervene in cases such as this one:

While recognizing the limited review permitted under s. 686(1)(a)(i),
    convictions based on eyewitness identification evidence are particularly well
    suited to review under that section. This is so because of the well recognized
    potential for injustice in such cases and the suitability of the appellate
    review process to cases which turn primarily on the reliability of eyewitness
    evidence and not the credibility of the eyewitness

The extensive case law arising out of the review of convictions
    based on eyewitness identification reveals that the concerns about the
    reasonableness of such verdicts are particularly high where the person
    identified is a stranger to the witness, the circumstances of the
    identification are not conducive to an accurate identification, pre-trial
    identification processes are flawed and where there is no other evidence
    tending to confirm or support the identification evidence.

[36]

In the appellants submission, all four of the concerns listed in
Tat
are present here.

[37]

First, as in
Tat
, the circumstances of the identification by
    Mr. Pierre on the night of the attack were poor. It was night time. His
    attackers were hooded. He saw them for only a moment before being hit on the
    head with a baseball bat. Mr. Pierre gave inconsistent accounts of how the
    assault happened and he could not even say whether his attackers had any facial
    hair.

[38]

Second, the appellants maintain that the pre-trial identification
    process was obviously flawed.

[39]

Mr. Renous was never identified by a photograph line-up procedure.
    Further, Mr. Pierre initially identified a different Carl, Karl Atire, and
    only named Mr. Renous after a mysterious visit to his hospital room by a man
    whose identity he could not recall.

[40]

As for Mr. Charles, there are reliability concerns in the photograph
    line-up procedure used to identify him, including the photographs not being
    uniform in size and Mr. Pierre having just awaken from a two-week coma at
    the time of the first line-up procedure. The photograph of Mr. Charles used in
    the line-up was lost by the police, making it impossible to determine whether the
    photograph was in fact one of Mr. Charles. In any event, the police
    detective administering the line-up told Mr. Pierre beforehand that a
    photograph of the suspected attacker would be amongst those he was shown.

[41]

The appellants also argue that Mr. Pierres testimony that he recognized
    Mr. Charles voice is of questionable value. He hardly knew Mr. Charles and, in
    any event, voice identification evidence is even weaker and more suspect than eyewitness
    evidence.

[42]

Third, the appellants submit that there was virtually no confirmatory
    evidence with respect to the identification of the attackers and no
    circumstantial evidence, such as evidence of motive or a connection between the
    two appellants.

[43]

The cellphone evidence placing Mr. Charles in the general area at the
    time of the assault is, they argue, of little probative value. On any given
    day, there are hundreds of thousands people in that busy area of the City. As for
    the neighbours evidence, it was of virtually no assistance in determining the
    identity of the attackers.

[44]

Fourth, the more difficult of the points listed in
Tat
to apply in this case is
whether the
    person identified is a stranger to the witness. Here, the appellants argue that
    Mr. Pierres evidence regarding his relationship with the two appellants is
    highly suspect. While the appellants were not total strangers to Mr. Pierre,
    it was clear that Mr. Pierre had met them on only a small number of previous
    occasions and he gave inconsistent evidence as to those previous contacts. His
    claims about the extent of his previous exposure to the accused appeared to expand
    over time, from two or three encounters in his testimony at the preliminary
    inquiry to around ten encounters by the time of his trial testimony.

[45]

To the concerns listed in
Tat
, the appellants add a fifth
    concern, that is, that Mr. Pierre suffered from a very serious lack of
    credibility as a witness.

[46]

The appellants maintain that Mr. Pierres description of how the attack
    unfolded makes no sense and is implausible. Why would someone go out to his car
    to get his wallet to prevent his girlfriend from going to the car and finding a
    condom in his wallet when, as the evidence discloses, he had over 100 other condoms
    in his car at that time? How would two apparently unrelated people know that
    Mr. Pierre would come out of his girlfriends house at that very moment? Why
    would they attack him?

[47]

Moreover, there was evidence suggesting that Mr. Pierre had a lavish
    lifestyle and was involved in criminal or other unsavoury activities. This, in the
    appellants submission, puts the lie to Mr. Pierres testimony that he had only
    a modest income from a clothing store he was operating in Montreal. Despite Mr. Pierres
    denials and attempts to explain, his testimony was clearly suspect.

[48]

I would not give effect to this ground of appeal. This is not one of
    those exceptional cases where a verdict reached by a properly instructed jury
    can or should be interfered with.

[49]

The test to demonstrate that a verdict is unreasonable was set out by the
    Supreme Court of Canada in
R. v. Yebes
, [1987] 2 S.C.R. 168. Within
    the limits of appellate disadvantage, the appellate court must re-examine and
    to some extent reweigh and consider the effect of the evidence to determine
    whether the verdict is one that a properly instructed jury, acting judicially,
    could reasonably have rendered (at para. 25).

[50]

While
Tat
is instructive, there is a critical difference
    between the present case and
Tat
. The present case is one of
    recognition and does not involve identification by a witness of a complete stranger.
    Mr. Pierres testimony was that he knew the appellants from his
    involvement in the Haitian community in Montreal. He testified that he had met
    them several times and that he recognized them as his attackers on the night in
    question.

[51]

Although Mr. Pierres evidence was clearly problematic in parts, it was
    not completely implausible and totally unbelievable as suggested by the
    appellants. It must be examined as a whole and in context. As submitted by the
    Crown, the inconsistencies and frailties in Mr. Pierres identification
    evidence are explicable due to his long recovery from serious injuries and his
    difficulty with the English language. Importantly, the timeline of the
    identification narrative shows a pattern that supports Mr. Pierres
    identification of the appellants. He named a Carl immediately after being
    attacked. In his Toronto hospital room on December 5, 2010, he again named a
    Carl in writing. When he was first able to speak from his Montreal hospital
    bed on January 24, 2011, he named a Greg.

[52]

Mr. Pierre identified Mr. Charles through the photograph identification
    procedure that, while imperfect, was videotaped. The jury had the benefit of
    viewing both videotapes as well as of assessing Mr. Pierres explanations in
    the stand.

[53]

The fact that Mr. Pierre did not know the appellants last names is not
    unusual and little can be inferred from this. Many acquaintances are developed
    and maintained on a first name basis without mention or use of last names.
    Mr. Pierres recognition evidence is strengthened by his evidence that he
    recognized the voice of one of his attackers as being the voice of Mr. Charles.

[54]

The record also provides some support for Mr. Pierres testimony.

[55]

Both neighbours recognized Mr. Pierre and saw two assailants flee after
    injuring Mr. Pierre. Upon being asked by Mr. Ditta who had attacked him,
    Mr. Pierrewho was no doubt contemplating deathresponded Carl or
    Carlton.

[56]

The photographs of the crime scene are also consistent with the attack having
    occurred in the manner Mr. Pierre described.

[57]

Finally, the cellphone records placed Mr. Charles within 10 minutes of
    the crime scene only one hour before the attack. Mr. Charles overall
    movements as disclosed by the cellphone records are consistent with him leaving
    Toronto, coming to Vaughan at the time of the attack and returning to Toronto shortly
    after the attack.

[58]

Determining Mr. Pierres credibility was up to the jury. It was for them
    to decide whether Mr. Pierre was lying about his sources of income and his
    lifestyle. The jury may well have accepted Mr. Pierres explanations as to
    these matters. Moreover, even if the jury was of the view that Mr. Pierre
    was lying about his lifestyle and income, the jury still had to assess the
    impact that this would have had on his testimony regarding the attack itself and
    the identification of his attackers. As the Supreme Court of Canada explained
    in
R. v. W. H.
, 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 32, a jury
    may accept some of a witness evidence while rejecting other parts of it.

[59]

Further, in
R. v. W. H.
, at para. 41,

the Supreme
    Court went on to confirm that:

The determination [of credibility] turns not only upon such
    factors as the assessment of the significance of any alleged inconsistencies or
    motives for concoction, which may be susceptible of reasoned review by a court
    of appeal, but on the demeanour of the witness and the common sense of the
    jury, which cannot be assessed by the court of appeal.

[60]

Based on the evidence summarized above and their assessment of Mr. Pierres
    demeanour on the stand before them, the jury was clearly satisfied of the guilt
    of both appellants beyond a reasonable doubt. I see no basis on which to
    interfere.

(2)

Did the trial judge err by declining to provide the jury with a
Vetrovec
caution?

[61]

The appellants argue that a
Vetrovec
warning in this case was
    mandatory and that the jury ought to have been given a clear and sharp warning
    to alert them to the dangers of adopting the evidence of an unsavoury,
    untrustworthy, unreliable or tainted witness:
R. v. Khela
, 2009
    SCC 4, [2009] 1 S.C.R. 104.

[62]

In the appellants submission, the trial judge erred in concluding that
    a
Vetrovec
warning was not required. They signal several flaws in his
    analysis, namely that:

·

He
    focused on Mr. Pierres general character rather than the trustworthiness of
    his testimony.

·

He
    discounted troubling inconsistencies in, and the implausibility of, Mr. Pierres
    evidence because Mr. Pierre had not admitted to lying under oath.

·

He
    did not balance Mr. Pierres credibility problems against the importance of his
    evidence to the Crowns case.

·

Based
    almost exclusively on Mr. Pierres denial of having lied, he concluded that Mr.
    Pierre was not unsavoury, despite the considerable evidence demonstrating
    that Mr. Pierre had a connection to illegal or unsavoury prostitution
    activities.

[63]

I would not give effect to these submissions.

[64]

It is well settled that the decision whether to provide a
Vetrovec
caution lies at the discretion of the trial judge. There is no set rule or
    formula for determining when such a warning is necessary. Two main factors are
    to be considered: (1) the importance of the witness testimony to the Crowns
    case; and (2) the credibility of the witness, weighing factors such as the
    witness disreputable character and his or her having lied under oath:
Khela
,
    at para. 35.

[65]

The
Vetrovec
caution is meant to bring home to lay jurors the
    accumulated wisdom of the laws experience with unsavoury witnesses in
    circumstances in which jurors might not otherwise appreciate the need or reason
    to be skeptical of the evidence and to be cautious in the acceptance of it:
Khela
,
    at para. 4.

[66]

The trial judge, however, is not required to give a clear and sharp
    warning where the danger in relying on a particular witness evidence has not
    been established. Provided there is a foundation for the exercise of the
    discretion in the trial record, appellate courts should exercise restraint and
    defer to the trial judges determination on a
Vetrovec
application.
    The trial judge is the one best situated to assess the evidence and context as
    well as the effect that a particular instruction might have on the jury.

[67]

In his ruling on the
Vetrovec
application, the trial judge
    correctly identified the two key factors to consider: the importance of the
    witness evidence and the problems with the witness credibility. The trial
    judge found that Mr. Pierres evidence was central to the Crowns case and he then
    went on to consider the problems with Mr. Pierres credibility. The trial judge
    acknowledged Mr. Pierres prior convictions that pointed to his being
    untrustworthy. He determined, however, that the appellants efforts to paint
    Mr. Pierre as being engaged in criminal or unsavoury activities such as drug
    dealing and prostitution had not gained any real traction during
    cross-examination.

[68]

As for the inconsistencies in Mr. Pierres evidence, he found that these
    went more to the reliability of his evidence than to his credibility. In most
    cases, Mr. Pierre had proffered explanations for the inconsistencies and he never
    admitted to lying under oath.

[69]

The trial judge concluded that a
Vetrovec
caution was not
    required and that the concerns of the appellants could be addressed in his
    final instructions to the jury short of giving a special
Vetrovec
caution. He would instruct the jury regarding the use it could make of Mr.
    Pierres prior convictions, highlight the numerous inconsistencies in Mr.
    Pierres evidence and caution the jury to carefully consider the reliability of
    Mr. Pierres evidence.

[70]

It is apparent from his ruling that the trial judge did not, as the
    appellants suggest, simply discount the inconsistencies. Further, his final instructions
    to the jury ensured that the issues with respect to Mr. Pierres testimony were
    readily apparent.

[71]

Nor did the trial judge fail to weigh the concerns regarding Mr.
    Pierres testimony against the centrality of that evidence to the Crowns case.
    The trial judge was simply of the view that, despite the importance of Mr.
    Pierres testimony to the Crowns case, he was not the type of unsavoury
    witness for which a caution was required.

[72]

In the circumstances of this case, I agree with the Crowns submission
    that Mr. Pierres credibility problems were not of such a nature that a
Vetrovec
warning was mandatory. The trial judges assessment and exercise of discretion in
    that regard was reasonable and ought not to be interfered with on appeal.

(3)

Was the charge to the jury sufficient with respect to eyewitness
    identification evidence?

[73]

The appellants argue that the trial judges instructions with respect to
    eyewitness identification were inadequate.

[74]

The appellants maintain that, in the circumstances of this case, the
    jury should have been given specific instructions regarding the serious problems
    in the initial photograph line-up procedure. These problems included: the fact
    that the investigating officer did not advise Mr. Pierre that his attacker may
    not be in the photograph line-up; the fact that the officer told Mr. Pierre the
    name of Mr. Charles after he motioned toward the picture; and the fact
    that the photograph of Mr. Charles used in the line-up was much larger than all
    of the other pictures.

[75]

In the appellants submission, these problems could not have been cured
    by the subsequent photograph line-up procedures. The initial errors tainted all
    future identification procedures including the in-court identification
    evidence. The procedure was so tainted that virtually no instruction by the
    trial judge would have been adequate.

[76]

The appellants further submit that the trial judge failed to instruct
    the jury that:

a) the testimony of the neighbour, Mr. Kreslin, that the
    attacker had green eyes (which Mr. Charles did not have) meant that Mr.
    Kreslins evidence could not be relied on whatsoever to identify Mr. Charles;

b) the in-dock identification should be given no weight;

c) voice identification is even more frail than eyewitness
    identification evidence and should not be relied on to corroborate the eyewitness
    identification; and

d) the failure to name an attacker in a case of alleged
    recognition means that the recognition must be approached with significant
    caution.

[77]

I would not give effect to these submissions.

[78]

The trial judges jury charge was very fair to the accused and, in my
    view, contains no reversible error. Trial judges have discretion in deciding
    how best to apprise the jurors about the frailties of eyewitness identification
    testimony and, viewed as a whole, the instruction in this case adequately
    equipped the jury to assess that testimony.

[79]

In
R. v. Hay
, 2013 SCC 61, [2013] 3 S.C.R. 694, at para. 48, the
    Supreme Court of Canada confirmed that:

a trial judge must be afforded a certain degree of flexibility
    in instructing the jury A trial judge is not required to use any particular
    form of words in instructing the jury regarding the frailties of eyewitness
    evidence and, rather, must be afforded considerable latitude in deciding how
    best to apprise the jurors about those frailties.

[80]

The frailties of eyewitness identification evidence raised by the
    appellants were canvassed extensively by the trial judge in his charge to the
    jury and were carefully blended with discussion of the concept of reasonable
    doubt. The trial judge spent considerable time on the issue of eyewitness
    identification evidence. The transcript of this portion of his charge to the
    jury covers approximately 20 pages.

[81]

The trial judge told the jury that they must be very cautious about
    relying on eyewitness testimony to find the appellants guilty in this case. He
    warned them that, in the past, wrongful convictions have occurred on the basis
    of mistakes made by honest and confident witnesses. The judge stated that in-court
    identification is deceptively credible and that there is a very weak link
    between the confidence level of a witness and the accuracy of his or her
    evidence.

[82]

The jury was then instructed to assess Mr. Pierres reliability and
    credibility as a witness, and in doing so to consider:

·

the circumstances in which Mr. Pierre made his observations
,
    including how well he knew the appellants prior to the attack, the visibility
    and lighting conditions, possible distractions of his attention, and inconsistencies
    between his testimony at trial and prior statements made to police and in the
    preliminary inquiry;

·

the circumstances of Mr. Pierres identification of the
    appellants as the persons whom he saw
, including assessment of the
    entire identification narrativefrom Mr. Pierres purported statements to Mr.
    Ditta at the scene of the attack to the handwritten and spoken identification
    procedures conducted in hospital, which were videotapedand the manner in which
    the identification process, in particular the photograph line-ups, was
    conducted.

[83]

The trial judge went through Mr. Pierres evidence chronologically with
    respect to each of the above-noted considerations. He discussed how they might
    apply the relevant legal principles to the facts of the case. At various
    points, he noted expressly that the jury might find Mr. Pierre has not been
    entirely consistent in his evidence. With respect to the circumstances of Mr.
    Pierres observations, he noted that Mr. Pierre was unable to recall a number
    of details relating to his attackers or of the attack itself. With respect to
    the circumstances of Mr. Pierres identification of the appellants, the judge
    reminded the jury of several inconsistencies and weaknesses in Mr. Pierres
    evidence.

[84]

The trial judge stressed that identification through a photograph
    line-up must be independent and untainted. The judge told the jury that any
    act which tends to convey to a witness that a person is suspected by the
    authorities undermines the independence and reliability of photo line-up
    evidence. In that light, he advised them to watch and consider the videotape
    evidence of the photograph line-up procedure in its entirety.

[85]

The trial judge told the jury that they should be cautious when
    considering how much weight to place on the photograph line-up evidence. He
    advised that they might find the manner in which the line-up was conducted and
    the ways in which it departed from best practices affected its reliability.

[86]

The trial judge told the jury that the credibility and reliability of
    Mr. Pierres evidence is very much in issue, as is the reliability of the
    identification process with respect to both defendants.

[87]

He then summarized the positions of the parties on that issue. For the
    Crown, this was a recognition case. Therefore, detailed descriptions were not
    necessary and Mr. Pierres in-court identification of the appellants was
    supported by other recognition evidence. For the defence, Mr. Pierre was a
    wholly unreliable and discreditable witness. The defence pointed to a number of
    weaknesses and inconsistencies in Mr. Pierres evidence, problems tainting the
    identification process, and his criminal record involving offences of
    dishonesty.

[88]

The trial judge concluded that portion of his charge by reminding the
    jury that the Crown must prove beyond reasonable doubt that it was one or both
    of the appellants who committed the offence.

[89]

In my view, therefore, all of the appellants concerns were adequately
    addressed by the extensive instructions given by the trial judge. Accordingly,
    this ground of appeal must fail.

(4)

Did the trial judge err in admitting Mr. Charles cellular telephone
    number into evidence?

[90]

Mr. Charles brought a pre-trial application seeking to exclude evidence
    that identified him as the owner of the cellular telephone number for which
    telephone records were obtained and put into evidence.

[91]

Mr. Charles had provided this telephone number to his probation officer
    in the weeks prior to the attack. In Mr. Charles submission, he was compelled
    to provide it and its admission into evidence would infringe his right against
    self-incrimination. He based this position on the submission that his probation
    officer was a person in authority, that the provision of the number was not
    voluntary and that its admission was therefore contrary to the common law confessions
    rule.

[92]

The trial judge denied the application to exclude the records. He
    concluded that a probation officer was not a person in authority for purpose
    of the confessions rule because, at the time the number was provided, there was
    no prosecution, investigation or other proceeding involving Mr. Charles, over
    which the probation officer could have exerted influence. The trial judge
    further stated that, in any event, he would hold that the provision of the
    phone number was voluntary and made without compulsion or any form of external
    pressure.

[93]

Mr. Charles submits that the trial judge erred in at least two respects.

[94]

First, the trial judge erred in concluding that the absence of a contemporaneous
    proceeding or investigation was dispositive of whether the statement made was
    made to a person in authority. In Charles view, probation officers are in no
    different position from prison guards who are automatically considered to be persons
    in a position of authority.

[95]

Second, he submits that the trial judge erred in assessing the evidence
    of voluntariness. The fact that Mr. Charles initiated the call to his probation
    officer and provided the number of his cellular telephone does not lead to the
    conclusion that it was voluntary. Mr. Charles argues that the information was
    provided in the context of an adversarial relationship and that this should
    undermine any suggestion of voluntariness.

[96]

I would not give effect to this ground of appeal.

[97]

Whether or not probation officers are presumptively persons of authority
    need not be determined on this appeal. It is apparent, in my view, that the
    trial judge correctly concluded that the statement was voluntary.

[98]

As the trial judge noted, Mr. Charles left his cellular telephone number
    as an additional number at which he could be reached by his probation officer. While
    Mr. Charles was compelled to provide certain information, the cellular
    telephone number was not part of the information that had been requested of
    him. The number was provided of his own accord as an administrative convenience
    and not out of any perceived compulsion to provide that information. On the
    facts as canvassed by the trial judge, there is simply no air of reality to the
    assertion that the appellant was somehow compelled, involuntarily, to provide
    what at the time was innocuous information.

E.

Conclusion

[99]

For these reasons, I would dismiss the appeals.

Released: E.E.G. November 25, 2016

Paul Rouleau J.A.

I agree E.E. Gillese
    J.A.

I agree David Brown
    J.A.5