R. v. Vasquez-Rivera

R. v. Vasquez-Rivera Collection Decisions of the Court of Appeal Date 1999-06-04 Docket numbers C23814 Judges McMurtry, Roy; Carthy, James Joseph; Charron, Louise Vivianne Subject Criminal Decision Content DATE: 19990604 DOCKET: C23814 COURT OF APPEAL FOR ONTARIO McMURTRY C.J.O., CARTHY and CHARRON JJ.A. BETWEEN: ) ) Howard Borenstein, HER MAJESTY THE QUEEN ) for the appellant ) Respondent ) ) - and - ) Randolph Schwartz, ) for the respondent JOSE VASQUEZ-RIVERA ) ) Appellant ) ) Heard: May 27, 1999 ) On appeal from his conviction by Madame Justice Corbett, sitting with a jury, on March 16, 1995 BY THE COURT: [1] The appellant appeals against his conviction for sexual assault on the ground that the Crown failed to prove the identity of the assailant and that, consequently, the trial judge erred in failing to direct a verdict of acquittal. [2] It is our view that the identification evidence provided by the complainant, when considered in the context of the entire proceedings, was sufficient to support the jury’s verdict. [3] It is important to note that the appellant was well known to the 15 year old complainant. He was a friend of the family with whom she and her family had lived for some time and who had continued to regularly visit after he had moved out. During the course of her testimony, the complainant repeatedly referred to her assailant by name, Luis, or Mr. Vasquez-Rivera. Both Crown and defence counsel also repeatedly referred to the perpetrator by name. [4] No issue was raised with respect to the identification of the perpetrator at any time during the course of the complainant’s testimony. It is apparent from the cross- examination of the complainant that the theory of the defence was that the victim disliked and resented Mr. Vasquez-Rivera and that she had fabricated the allegations of sexual abuse. No suggestion was ever made during the course of the complainant’s testimony that the person in court may not have been the “Mr. Vasquez- Rivera” being referred to in the evidence. [5] At the conclusion of the complainant’s testimony, and before the Crown closed its case, the following exchange took place between counsel and the court: MR. ENGEL: To the best of my note-taking capabilities I don't believe at any time that Miss P. identified the accused as being the person who committed the sexual assault and that is as far as my notes are concerned and as far as my independent recollection is concerned. THE COURT: The fact that she …. MR. JENNINGS: My recollection, on more than one occasion I referred her to the gentleman before the court and the gentleman as the man in the box, she referred to him as Luis Vasquez to confirm that he is the accused before the court, I referred to him several times as the gentleman before the court, the gentleman in the box. MR. ENGEL: The reason I am doing it – and I know my friend has the habit, usually does that at the beginning, 'is this the gentleman in the box'? Thereafter I was careful to make notes whenever referred to the gentleman in the box or accused gentleman and I don't believe that was ever done. THE COURT: It was not done in the usual way but there was a reference to him. MR. ENGEL: If Your Honour has that recollection, I don't. THE COURT: Ready for the jury? Jury enters courtroom – 11:47 a.m. MR. JENNINGS: That's the case for the Crown, Your Honour. MR. ENGEL: If I may call Detective Ward, please. [6] As this excerpt reveals, defence counsel did not move for a directed verdict. It would appear that he abandoned his argument since he simply proceeded to call his witnesses and the question of identification was never raised again during the trial. The trial judge charged the jury in accordance with the theory of the defence that had been advanced and no objection was made to the charge. It would have been clear to the members of the jury from the instructions that they had to be convinced beyond a reasonable doubt that the appellant had committed the offence before they could return a guilty verdict. [7] In these circumstances, we see no reason to doubt the correctness of the trial judge’s finding that, although not done in the usual way, there had been some evidence of identification by the complainant. Although counsel for the appellant is correct in stating that the transcript does not reveal any express reference in words to the “gentleman in the court”, the transcript is entirely consistent with the trial judge’s finding that some identification had been made in a manner other than the usual way, by gesture or otherwise pointing out of the accused. Had defence counsel at trial pursued his argument, the Crown could easily have called further evidence on this issue or moved to recall the complainant since the case was not yet closed. [8] In these circumstances, the jury was entitled to conclude that identification had been proven on the basis of the uncontradicted evidence of the complainant, the manner in which it was given and the context of the entire proceedings. [9] The appeal is dismissed.