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35669 R v. Araya

On appeal from the judgment of the Court of Appeal for Ontario, 2013 ONCA 734. A was convicted of manslaughter for his alleged involvement in a shooting that took place in a Toronto park. The victim and some friends were socializing in the park when a group of men entered the park and attempted to rob some of them. The victim was shot and killed while chasing after the assailants who fled the scene. Eyewitnesses only provided general descriptions of the assailants — young, black, thin and clean-shaven — and described the shooter as being between 5’4” and 5’8”. A, who was 6’1” at the time, was not identified as being among the assailants. He was arrested five days after the shooting, when a teacher of his notified the police that A had approached him and confessed to being present at the shooting but not to having fired the gun. Because A’s appearance had changed between the time of the shooting and his trial, the Crown sought to have admitted two photographs of him taken five days after the shooting in order to establish what he looked like at the time. The defence objected, arguing that the photographs were highly prejudicial. The trial judge admitted the photographs for the purpose of allowing the jury to consider whether A had any of the physical attributes described by the eyewitnesses, subject to a limiting instruction that warned the jury that it could not conclude that A was among the assailants solely because his appearance fit within the general description provided by the eyewitnesses. In his instructions to the jury, the trial judge also summarized the Crown’s position that the conversation which took place between A and his teacher should be viewed as a confession of guilt. A appealed his conviction and sentence. A majority of the Court of Appeal allowed the appeal and remitted the matter for a new trial.

HELD (5:0): The appeal should be allowed, A’s conviction for manslaughter restored, and the matter remanded to the Court of Appeal for consideration of the sentencing appeal.

There is no reason to disturb the trial judge’s finding that the photographs were admissible. Whether A could have been among the assailants was a critical issue in this case, because he denied being in the park the night of the shooting. Moreover, A did not concede that his appearance fit within the general eyewitness descriptions. Accordingly, the photographs were relevant to the limited question of whether A’s appearance at the time of the shooting fit within the general descriptions provided by witnesses. Regarding the potential prejudicial effect of the photographs, there are particular dangers involved in showing eyewitnesses a single photograph to determine if the individual shown is the individual they saw, because the witness’s memory may be tainted by exposure to that photograph. However, this concern is not relevant where it is the jury who has been exposed to the photograph of a single person and asked to consider whether the person shown falls within a general description. The jury has no pre-existing memory of the person’s appearance to corrupt, nor is the concern about the over-persuasiveness of tainted witness testimony relevant in this context. In light of the deference afforded to trial judges on questions of balancing probative effect against prejudice, there is no reason to disturb the trial judge’s finding that the risk associated with the photographs could be appropriately mitigated by a limiting instruction, and thus that the probative value of the photographs outweighed their prejudicial effect.

The trial judge’s limiting instruction with respect to the use it could make of the photographs was adequate. Parsing the language in one particular sentence to determine whether it was sufficient to warn of an impermissible line of reasoning, without taking into consideration the greater context of the jury instructions and the trial itself, represents the kind of dissection and minute scrutiny this Court has warned against. In this case, there does not appear to be a considerable risk that the jury would have, as a consequence of minor imperfections with the jury instructions, abandoned their common sense and adopted clearly flawed reasoning. Moreover, the risk of a juror actually using the photographs as the basis for an impermissible line of reasoning in the context of this case was appropriately minimized both by the fact that Crown counsel did not urge the jury to adopt impermissible lines of inference and by the trial judge’s charge to the jury as a whole.

The trial judge’s use of the word “confession” in his jury instructions does not constitute a toxic instruction such that a new trial should be ordered. Indeed, the trial judge did not himself label A’s statements to his teacher as confessions. Rather, he repeatedly described the school exchange as a conversation. Moreover, the trial judge only referred to the exchanges as a confession when reiterating the Crown’s position, which was that the school conversation should be viewed as a confession of guilt. When viewed in light of the trial judge’s other cautions to the jury, including the caution that the teacher’s testimony be evaluated only for its evidence of what A said, rather than the teacher’s interpretation of his statements, as well as the caution that confession to mere presence at the scene was not sufficient to establish guilt, a single use of the word “confession” in describing the Crown’s submissions would not have been so toxic as to call for a correcting instruction. The trial judge fairly described the conversation between A and his teacher and it was properly for the jury to conclude whether the conversation amounted to a confession.

Since the jury instructions were adequate, it is not necessary to consider whether the facts of this case would warrant the application of the curative proviso provided in s. 686(1) (b)(iii) of the Criminal Code.

Reasons for judgment by Rothstein J.  Neutral citation:  2015 SCC 11.  No. 35669.