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Criminal law - Evidence - Identity - Charge to jury - Whether the trial judge misdirected the jury on the use it could make of certain photographs of the respondent.

The respondent, Mr. Araya, was convicted of manslaughter. The victim was shot while socializing with some friends in a Toronto park. According to witnesses, a group of three or four black men approached the victim and his friends and tried to rob some of them. The victim resisted when they tried to take his backpack and, in response, he tasered one of the robbers. When the robbers fled, the victim followed them, and was shot. The Crown conceded that Mr. Araya was not the shooter because he did not meet the description given by witnesses. In addition, Mr. Araya was not identified as being in the park on the night in question, nor was he identified at trial or in any pre-trial identification procedure. Mr. Araya also testified that he had not been present that night, did not know who was involved and had nothing to do with it. The Crown relied heavily on the testimony of one of Mr. Araya’s teachers who said Mr. Araya had come to him for advice, admitting he had been in the park at the time of the shooting but was not involved and did not have a gun. At trial, the Crown was permitted to introduce two photographs of Mr. Araya taken at the time of his arrest, five days after the shooting. The jury was told it could consider Mr. Araya’s appearance in those photos as a piece of circumstantial evidence that he was in the park on the evening of the shooting. On appeal, Mr. Araya argued that the photographs should not have been admitted, and even if they were properly admitted, the trial judge erred in his jury instructions with respect to them. A majority of the Court of Appeal allowed the appeal on the basis that, while the photographs were properly admitted, the trial judge did not clearly tell the jury that if it found that Mr. Araya’s appearance in the photographs fit the generic eyewitness descriptions, it could not conclude from that comparison that Mr. Araya was one of the robbers in the park, and that all it could conclude was that he fit within the class of people that shared those vague general physical characteristics. Strathy J.A., dissenting, would have dismissed the appeal, finding that the jury had been properly instructed.