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Ontario’s top court has warned of the dangers of eyewitness evidence in acquitting a man of harassing, chasing and sexually assaulting several mostly young women in Richmond Hill, Ont.

Six girls and women told police separately in 2014 that a man had followed them, run at them, grabbed them around the waist from behind or touched them, one on her thigh under her skirt. All six described the man as Caucasian, middle-aged, of medium build and of roughly medium height, and driving a Japanese car. Two were asked to pick him out of a photo lineup and could not. A third did pick him out, nearly nine months after the incident, saying she “sort of” recognized him.

But just one of the six said she saw the man clearly, from the front. And she said the man had a deeply pockmarked face. Others gave specific descriptions of his car, such as tinted windows, rusted doors and winter tires. (One complainant, a 16-year-old who saw the perpetrator only in profile, said he looked like the actor George Clooney.)

Yet, even though Humberto Huerta does not have a pockmarked face, and his car did not have winter tires, rusted doors or tinted windows, a jury convicted him of criminal harassment involving one complainant, the sexual assault of a second complainant, and sexual interference and sexual assault of a third. (The jury acquitted him on charges relating to the three other complainants.)

The Ontario Court of Appeal said in a 3-0 ruling that the evidence against Mr. Huerta did not support the guilty verdict, and that Superior Court Justice Susan Healey, who conducted the trial, did not instruct jurors properly.

“The trial judge should have pointed out that much of their evidence was generic and that they did not mention distinguishing features. This is a badge of unreliability,” Justice Julie Thorburn wrote in a ruling released Thursday, supported by Justice Gladys Pardu and Justice Lois Roberts.

Justice Thorburn cited other rulings of the same court that described eyewitness identification as “inherently unreliable” and requires judges to caution jurors about its dangers.

Caryma Sa’d, a lawyer who was not involved in the case, said that when she studied law at the University of Ottawa, a man dashed into her classroom once, grabbed a bag and ran, as part of a class exercise. The students were asked to describe the man and the descriptions diverged, she said. “It would do us all well to remember that there but for the grace of God go I if we relax the rules in terms of eyewitness evidence and properly instructed decision-makers,” she said in an interview.

The Globe and Mail tried unsuccessfully to reach Mr. Huerta through his lawyer, Jeff Carolin. Mr. Carolin would not say what Mr. Huerta’s sentence was, without instructions from his client. The Attorney-General’s ministry, which prosecuted the case, declined to comment during a period when an appeal remains possible.

Justice Healey had warned the jurors of the general dangers of eyewitness evidence – that people can make honest mistakes. But the appeal judges said she also needed to warn of the specific discrepancies, such as the pockmarks, that pointed toward innocence.

The appeal judges also highlighted another critical error, this one around evidence from three educators who saw Mr. Huerta in a park near their school. The educators had seen a composite drawing of the perpetrator, based on a description from one eyewitness. They concluded that Mr. Huerta looked like the composite and was acting suspicious, and two of them called 911. The appeal judges said that evidence was prejudicial, and Justice Healey should not have let it be used to establish the perpetrator’s identity, as he wasn’t committing an offence.

Editor’s note: An earlier version of this story incorrectly identified Michal Fairburn as the author of an Ontario Court of Appeal decision acquitting a man who had been convicted of harassing and groping young women. The author was, in fact, Julie Thorburn.

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