SCC No. 33694
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)
BETWEEN:
LARRY WAYNE JESSE
APPELLANT
(Appellant)
AND:
HER MAJESTY THE QUEEN
RESPONDENT
(Respondent)
An Order has been made in this case directing that the identity of the
complainant(s) and any information that could disclose their identity not be
published in any document or broadcast in any way pursuant to Section 486.4(1)
of the Criminal Code
RESPONDENT'S FACTUM
Solicitor for the Appel/ant:
GIL D. McKINNON, Q.C.
Barrister & Solicitor
1500 - 701 West Georgia Street
Vancouver, B.C. V7Y 1C6
Tel: (604) 601-5616
Fax: (604) 601-5617
E-mail: [email protected]
Ottawa Agents for the Solicitor for the
Appel/ant:
HENRY S. BROWN, Q.C.
Gowling Lafleur Henderson LLP
266 - 160 Elgin Street
PO Box 466, Stn "0"
Ottawa, Ontario K1P 1C3
Tel: (613) 233-1781
Fax: (613)788-3433
E-mail: [email protected]
Solicitors for the Respondent:
JENNIFER DUNCAN
ELIZABETH A. CAMPBELL
Ministry of Attorney General
Criminal Appeals
6th Floor, 865 Hornby Street
Vancouver, B.C. V6Z 2G3
Tel: (604) 660-1126
Fax: (604) 660-1133
E-mail: [email protected]
Elizabeth.Campbell@ gov.bc.ca
Ottawa Agents for the Solicitors for the
Respondent:
ROBERT E. HOUSTON, Q.C.
Burke-Robertson
70 Gloucester Street
Ottawa, Ontario K2P OA2
Tel: (613) 236-9665
Fax: (613) 235-4430
E-mail: [email protected]
TABLE OF CONTENTS
PAGE
PART I ......................................................................................................................... 1
A. Overview .......................................................................................................... 1
B. The Evidence ...................................................................................................4
i)
Chelsea S ................................................................................................4
ii)
Gunnar B ..................................................................................................6
iii)
The complainant J.M ...............................................................................7
iv)
Randy B ...................................................................................................7
v)
Police involvement. ................................................................................... 8
vi)
The similar fact voir dire ........................................................................... 8
vii)
The positions of counsel ......................................................................... 10
viii)
The Reasons on the voir dire ................................................................. 10
ix)
The Appellant's evidence at triaL ............................................................ 12
x)
The Reasons for Judgment at trial. ......................................................... 13
xi)
The Court of Appeal for British Columbia ............................................... 14
PART II ...................................................................................................................... 16
RESPONDENT'S POSITION ON ISSUES ON APPEAL .......................................... 16
PART III ..................................................................................................................... 17
ARGUMENT ...'........................................................................................................... 17
A.
B.
C.
D.
Introduction ..................................................................................................... 17
The Admissibility of Similar Fact Evidence ...................................................... 17
Probative value versus prejudicial effect.. ....................................................... 21
The similar fact voir dire .................................................................................. 26
E. Abuse of process and the principle offinality in litigation ................................ 29
F. Application to the judgments below ................................................................. 34
G. Conclusion ...................................................................................................... 36
PART IV .................................................................................................................... 38
COSTS ...................................................................................................................... 38
PART V .....................................................................................................................38
ORDER SOUGHT .....................................................................................................38
PART VI ....................................................................................................................39
TABLE OF AUTHORITIES ....................................................................................... 39
PART VII ...................................................................................................................41
STATUTORY PROVISIONS .................................................................................... .41
1
PART I
A.
Overview
1.
This appeal engages the interplay between the institutional value of judicial
finality in litigation and the admissibility of a disputed, but never appealed, prior
conviction as similar fact evidence. The Appellant effectively seeks the creation of a
new category of similar fact evidence, the denied prior conviction, which is either
inadmissible because it is too prejudicial or in the alternative must be proven again
beyond a reasonable doubt as a pre-requisite to its admissibility.
The Respondent
submits this would constitute a remarkable change to the law governing the admissibility
of similar fact evidence. Proven prior conduct, with its corresponding high probative
value, would be subjected to a more rigorous standard of admissibility than unproven
allegations.
2.
The Appellant was charged with one count of sexual assault of J.M. on February
19, 2005 at Winfield, a small community in the Okanagan. The actus reus of the sexual
assault was unusual. It consisted of the insertion of a cork into J.M.'s vagina while she
was unconscious.
3.
The Appellant was tried by Madam Justice Arnold-Bailey, sitting without a jury, in
B.C. Supreme Court. On the basis of the facts the trial judge accepted, there were two
possible perpetrators of the sexual assault: the Appellant and a man named Randy,
whose advanced state of intoxication made him an unlikely candidate for having
inserted the cork into J.M.'s vagina.
4.
To prove the identity of the offender beyond a reasonable doubt, the Crown
applied to lead similar fact evidence concerning the Appellant's 1995 conviction for
sexual assault resulting from the insertion of two compacted plastic shopping bags into
the vagina of an incapacitated woman. The Appellant was sentenced to seven years
imprisonment for that offence and a companion count of robbery. The verdict was not
appealed.
2
5.
In the proceedings giving rise to this appeal, the Appellant vigorously opposed
the admission of his prior conviction as similar fact evidence and a lengthy voir dire
ensued.
The Crown called several witnesses from the earlier trial (though not the
complainant as she had passed away) and demonstrated fingerprints taken from the
Appellant following his arrest for the earlier sexual assault matched the fingerprints
taken following his arrest in 2005.
The defence cross-examined the witnesses
extensively. The Appellant did not testify.
6.
The trial judge admitted the prior conviction as similar fact evidence on the issue
of the identity of J.M.'s assailant.
She was satisfied the circumstances of the two
occurrences were sufficiently similar for her to conclude, on a balance of probabilities,
they were likely the work of one person, in accordance with the first part of the test for
admissibility of similar fact evidence to prove identity in R. v. Arp, [1998] 3 S.C.R. 339
at para. 48 [Appellant's Book of Authorities, Tab 5]. The trial judge was also satisfied
the prior conviction was proof on a balance of probabilities that the Appellant was the
assailant and was thus linked to the prior acts.
This latter finding exceeded the
requirement in Arp that there be some evidence beyond mere opportunity of a link
between the accused and the prior acts: Arp, supra, paras. 53-57.
7.
Despite the fact that it was a judge alone trial, the Crown recalled the similar fact
evidence during the trial proper. The defence again tested the evidence through crossexamination and the Appellant testified.
He admitted he had been convicted of the
sexual assault of J.S. but denied having committed that offence.
He also denied
sexually assaulting J.M. The Appellant was convicted of sexual assault of J.M. and
sentenced to an indeterminate sentence as a dangerous offender.
8.
The Appellant maintains the B.C. Court of Appeal erred in upholding the trial
judge's decision to permit the Crown to rely on his prior conviction to link him to the
underlying prior conduct.
He argues the conviction was inadmissible because it was
disputed (notwithstanding that he had never appealed it) and because it was prejudicial.
His alternative argument is that an accused should have the right to challenge a prior
conviction at the voir dire stage.
3
9.
The Respondent submits the B.C. Court of Appeal was correct in finding the prior
conviction was admissible to link the Appellant to the prior conduct. The conviction was
strong evidence of a link between the Appellant and the prior conduct, in addition to the
evidence of the witnesses called in the voir dire. The Appellant argues the admission of
his prior conviction operated unfairly against him and impaired his right to full answer
and defence. The Respondent acknowledges it operated to his detriment, as it assisted
the Crown in proving its case, but submits the trial judge was correct in finding it was not
so prejudicial as to merit its exclusion in light of its high probative value on the issue of
identity. This is a finding that attracts significant appellate deference. The trial judge
did not misuse the evidence to find the Appellant had a propensity to commit sexual
assault; rather, she used the similar fact evidence to satisfy herself beyond a
reasonable doubt that the Appellant, one of two men who could have committed this
highly unusual sexual assault, was the perpetrator.
The admission of similar fact
evidence for this purpose is precisely what was contemplated by this Court's decision in
Arp, supra.
10.
The Respondent further submits the Appellant was not hampered in his efforts to
challenge the admissibility of the similar fact evidence or the weight to be accorded to it.
Defence counsel extensively cross-examined the eyewitnesses to the offence, both at
the voir dire and the trial, in an effort to cast doubt on the prior conviction and the
similarities between the two occurrences.
The B.C. Court of Appeal upheld the trial
judge's finding, after the conclusion of the voir dire, that the Crown could rely on the
prior conviction and the Appellant was not entitled to challenge it at the similar fact
admissibility stage, though he could at trial.
While the trial judge relied on issue
estoppel in making the latter observation, the B.C. Court of Appeal held that abuse of
process was the legal impediment, per Toronto (City) v. C.U.P.E., Local 79, [2003] 3
S.C.R. 77, 2003
11.
see 63 (hereafter Toronto (City) v.
C.U.P.E.). [A.B.A. Tab 2].
A strict application of the doctrine of abuse of process, rooted as it is in a concern
for judicial economy and a desire to avoid relitigation of finally decided issues, might
well have led to the conclusion that the Appellant could not challenge or deny his prior
conviction at all. In this case, however, the B.C. Court of Appeal upheld the trial judge's
4
decision to permit the Appellant to challenge his prior conviction by testifying and crossexamining the similar fact witnesses in the context of the trial proper. As a result, the
Respondent submits the Appellant's trial was a substantively and procedurally fair one.
B.
The evidence
12.
The Respondent will provide a more detailed summary of the evidence than the
one set out in the Appellant's factum.
The summary is drawn from the trial judge's
reasons at conviction in A. R. Vol. I.
i)
13.
Chelsea S.
Chelsea S. and the complainant J.M. were friends. Chelsea was acquainted with
the Appellant, who worked with her boyfriend Gunnar.
Neither Chelsea nor Gunnar
knew the Appellant well enough for him to have free access to their home. On February
18, 2005, Chelsea and Gunnar had people over for drinks, including Chelsea's father
(who lived next door), J.M., Gunnar's brother Randy and a couple of neighbours. One
of the guests had a bottle of wine and Chelsea recalled there was a cork associated
with it [A.R., I, p. 91, para. 38]. Gunnar picked the Appellant up at a nearby pub and
brought him back to the house [po 90, para. 36]. Everyone sat around talking, drinking
alcohol and listening to music [po 91, para. 38].
shared [po 93, para. 41].
Several marijuana cigarettes were
Chelsea described J.M. as a "10" in terms of her level of
intoxication. She estimated Gunnar's level of intoxication as much lower than J.M.'s [po
92, para. 39]. Chelsea did not have a sense of the Appellant's level of sobriety as she
did not spend any time with him or talk to him over the course of the evening. While the
Appellant sat on the same couch as J.M., Chelsea said they were not paying any
attention to each other [pp. 92-93, para. 40].
14.
Randy was very intoxicated and passed out on a love seat before midnight.
About half an hour later J.M. also passed out. Chelsea helped J.M. onto a makeshift
bed on the dining room floor. Chelsea said Randy was passed out on the love seat until
the police attended [po 93, para. 42].
5
15.
J.M. was wearing jeans, a tank top and a long black sweater when Chelsea put
her to bed. J.M. had urinated in her jeans but was still wearing them. Chelsea gave
J.M. a pillow and a duvet, which J.M. wrapped around herself [po 93, para. 43].
16.
Chelsea said the last people to leave were the Appellant and then her father, at
about 12 or 12:30 a.m. There was talk, in the Appellant's presence, about getting a
drink at the bar before last call, but the Appellant said he was leaving. He declined
Gunnar's offer of a ride home. About five minutes after the Appellant left, Chelsea and
Gunnar went to find him, leaving Randy and J.M. passed out in the house [pp. 93-94,
paras. 44, 45]. The route was circular and took about five to ten minutes to drive. They
did not see him and went back home. They were away from home a maximum of 15
minutes [pp. 93, 97, paras. 45, 54].
17.
Upon arriving back at the house, Chelsea found the door locked. She did not
think they locked it on their way out. She panicked, banged on the door and hit the
outside glass pane hard enough to break it. A minute later the Appellant came to the
door, unlocked it, rushed past her and Gunnar and ran away.
Nothing was said by
anyone. It happened very quickly [pp. 94, 99, paras. 46,60].
18.
Once inside the house, Chelsea noticed J.M.'s pants were beside her and
"almost inside out, in a bunch". J.M. was closer to the bathroom from where Chelsea
had put her to bed. Scattered around J.M. was an electric tooth brush, a hair brush with
a 5-6 inch handle and a regular toothbrush.
Those items were normally kept in the
bathroom [po 95, para. 49]. Randy was in the same position as when he first fell asleep,
"out of it" and "drooling drunk", not awake [po 95, para. 47]. Chelsea tried to wake J.M.
[po 95, para. 48]. Gunnar went out to find the Appellant [po 95, para. 50].
19.
Chelsea called the police.
It took Constable Ross of the Kelowna R.C.M.P.
about 45 minutes to arrive. During that time Chelsea got J.M. on to the couch. J.M.
was awake but still "out of it". When Constable Ross arrived, Randy woke up [po 95,
para. 50].
20.
Some time after the Appellant left the house the second time, Chelsea received a
call on the cell phone she shared with Gunnar. The name "Larry" came up on the
6
display. The Appellant's name was programmed into the phone because he worked
with Gunnar. She answered the call but the caller said nothing. Chelsea told the caller,
whom she assumed to be the Appellant, that she had called police and he was "busted"
for what he did [po 96, para. 52].
21.
The next morning, Chelsea told J.M. what had happened the night before and
J.M. said she would go to the hospital. Chelsea and Gunnar dropped J.M. off at her
mother's house, then received a call asking Chelsea to return there. Chelsea went into
the bathroom where J.M. was trying to extract something from her body. J.M. produced
a cork she had pulled out of herself. Chelsea put the cork in a plastic bag and gave it to
police [po 96, para. 51].
ii)
22.
Gunnar B.
The trial judge found Gunnar's testimony confirmed much of what Chelsea said.
He had drinks with the Appellant at a pub before bringing him back to the house on the
evening of February 18, 2005. The Appellant sat on the couch in the living room for
most of the time, sitting next to J.M. until J.M. was put to bed [A.R., I, pp. 103-104,
paras. 72-75]. Randy was very drunk and passed out on the love seat around 10 p.m.
J.M. was about as drunk as Randy. Chelsea put J.M. on a make-shift bed on the dining
room floor. The Appellant said he was going home. After the Appellant left Gunnar
thought he would see if the Appellant needed a ride.
He and Chelsea drove around
looking for the Appellant but did not find him [po 104, para. 76].
23.
on it.
On their return home, the door to their house was locked, and Chelsea banged
The Appellant came to the door, opened it, brushed by them and "took off."
Gunnar thought the Appellant appeared startled. There was no conversation. Gunnar
went into the house and saw J.M. on the floor with no pants on.
He grabbed his
baseball bat and took his dog to look for the Appellant, but did not find him [po 105, para.
77]. Gunnar recalled his electric toothbrush was lying beside J.M. It was usually kept in
a jar on the bathroom counter [po 106, para. 78].
7
iii)
24.
The complainant J.M.
J.M. was 24 when she testified at trial. She is a diabetic and had quite a lot to
drink at Chelsea's house. She did not remember passing out or where she passed out
[A.R., I, p. 100, para. 64]. Prior to passing out she had no pain or problems with her
vaginal area or her head. When she awakened on the floor in the dining room, she
wondered why she had no pants on.
She was crying and thirsty, with a pounding
headache and a large bump on the back of her head. Her vaginal area was sore and
she felt like something was pressing into her bladder. It was "like something was inside
of me stuck and it would not come out" [po 101, para. 66]. J.M. did not know what time it
was. Randy was passed out on the couch and Chelsea and Gunnar were asleep in the
bedroom.
She recalled Chelsea telling her police had been there but J.M. had no
memory of this [pp. 101-102, para. 67]. Chelsea and Gunnar drove J.M. to her mother's
place the next morning. She still had pain in her vagina and described she pushed on it
by "peeing" and the cork came out. Her vagina was sore for a few days, as was her
head [po 102, para. 68].
iv)
25.
Randy B.
Randy had known J.M. since they were very young.
He knew the Appellant
through work [A.R., I, p. 108, para. 85]. Randy drank at least one third of a 40 ounce
bottle of rum at Gunnar and Chelsea's and admitted he was highly intoxicated. He went
to sleep on the couch in the living room after they ran out of alcohol [po 109, para. 87].
The next thing he recalled was the attendance of police [pp. 109-110, para. 88]. When
he woke up again the next morning he recalled J.M. complaining about stomach pain [po
100, para. 89]. Randy thought he got up once in the night to go to the bathroom. The
house was quiet and he did not see J.M. He had no sexual interest in J.M. and denied
touching her or putting anything in her vagina [po 110, para. 90]. He admitted he has a
problem with alcohol, including previous alcoholic blackouts, and did not really recall
what went on that night [pp. 110, 112, para. 91,95].
8
v)
26.
Police involvement
Constable Ross was dispatched to the B. residence in Winfield in response to a
911 call about a possible sexual assault. He arrived at 1:40 a.m. on February 19, 2005.
He observed a single pane of broken glass in the window of the door. He saw Randy
lying on a love seat and J.M. passed out or asleep on the couch. It took him over a
minute to rouse her, using pain stimuli to her ear lobe [A.R., I, p. 115, para. 106]. He
was of the view J.M. did not think an assault or anything else had taken place without
her knowledge. J.M. said she took her own pants off [p.117, para. 111]. She refused
medical attention and did not have any visible injuries. She seemed to want to lie down
and go back to sleep. Constable Ross asked Chelsea to keep an eye on J.M. and gave
her his card [po 116, para. 107]. Randy was obnoxious and extremely intoxicated. He
leaned against a wall, swayed and wobbled and did not appear to be able to walk very
well [po 116, para. 108]. Gunnar did not appear to be intoxicated [po 117, para. 109].
Chelsea was coherent [po 116, para. 107].
27.
Constable Vardy was dispatched to J.M.'s mother's house at 10:35 a.m. on
February 19, 2005. J.M., Chelsea and J.M.'s mother were upset. He took possession
of a cork in a plastic baggie [A.R., pp. 117-118, paras. 113-114].
He went to the
hospital and observed J.M. to be groggy, as if hung over, but she was fairly well
collected, if a little upset. He did not submit the cork for DNA analysis. The lab did not
find any semen after examining vaginal swabs taken from J.M. [po 118, para. 114].
vi)
28.
The similar fact voir dire
The Respondent's summary of the evidence from the similar fact voir dire is
based on the voir dire ruling in A.R., I, pp. 3-48. The Crown called evidence from a
number of witnesses who had testified at the Appellant's 1995 trial for sexual assault,
although the victim J.S. was deceased.
29.
On January 26, 1993 Martin Matsutani was at a bar in downtown Vancouver with
friends.
He parked near the Bay department store loading dock. Around 9 p.m. he
returned to his car. He saw two people engaged in a sexual act and went back to the
bar for a few minutes so as not to disturb them. The woman was naked, lying on her
9
stomach on the loading dock. The man was behind her, kneeling between her legs. It
appeared to Mr. Matsutani that the man was inserting something into her vagina as his
arm was going forwards and backwards at a ninety degree angle. The woman was very
still [A.R. I, pp. 8-9, paras. 17-19].
30.
After going back to the bar and telling his friends (including Peter Boudewyn,
Darryl Fox and Theresa Steele) what he had seen, Mr. Matsutani returned to the
loading dock with them. The woman was then alone, naked and appeared terrified.
Later that evening, Mr. Matsutani saw a man in police custody. He said it was the same
man he had seen earlier on the loading dock between the woman's legs [po 10, para.
20].
31.
Darryl Fox saw a man leaving the loading dock area, and followed him for a few
blocks and ultimately into the SkyTrain station. Peter Boudewyn called police with a
description of the man Mr. Fox was following. When the police attended they arrested
the man Mr. Fox had been following [pp. 10-11, 13, paras. 21-23, 29]. There was hardly
any traffic on the street that night and no other pedestrians other than in the SkyTrain
station, according to Theresa Steele [po 12, paras. 24-26]. Sergeant Herrmann of the
Vancouver Police Department arrested a male, later identified as the Appellant, at the
Granville SkyTrain station [po 14, para. 32].
32.
Constable Raila dealt with the woman on the loading dock. She was incoherent
in terms of sobriety, unable to speak properly or comprehend what she was being
asked. She was taken to hospital for a sexual assault examination [po 15, para. 35].
33.
Gordon Matei, Crown counsel at the 1995 trial, testified on the similar fact voir
dire. He said the Appellant was found guilty by a jury of sexual assault and robbery and
received seven years imprisonment. He tendered a certified true copy of the Indictment
from Supreme Court [po 17, para. 39]. Mr. Matei recalled the prosecution involved a
woman who was sexually assaulted on the loading dock of the Hudson's Bay and who
had a plastic bag of some sort inserted into her vagina. No fingerprints of value were
found on the bags and there was no DNA evidence. Mr. Matei recalled the Appellant
testified and denied any involvement in the offences [po 18, paras. 40-41].
10
34.
The Crown called Dr. Lise Loubert as a witness on the voir dire. Dr. Loubert was
found to be qualified to provide expert opinion evidence in the areas of general practice
and as a sexual assault examiner. In the early morning hours of January 27, 1993 she
examined a shaken and crying woman known as J.S. J.S. was covered in dirt and had
a laceration over her right eyebrow as well as bruises and scrapes over parts of her
body. Notwithstanding J.S.'s emotional state, she was able to interact with Dr. Loubert
and cooperate with the examination [po 18, paras 43-44]. Dr. Loubert examined J.S.'s
vagina, noting bruising and scraping. She could see foreign material in the vagina and
used a ring forceps to remove two large compacted plastic shopping bags. Once the
bags were removed she saw more abrasions and marks on the walls of the vagina [po
20-21, para. 45].
Dr. Loubert also testified that in the 142 examinations of alleged
sexual assault victims she had conducted in Vancouver over the 15 years prior to 2006,
J.S.'s case was the only one in which she found a foreign object in a vagina [po 34,
para. 78].
vii)
The positions of counsel
35.
The Crown sought to rely on the circumstances of the sexual assault on J.S.,
established by the witnesses on the voir dire, as being sufficiently similar to the offence
the Appellant was being tried for to meet the test for admission as similar fact evidence.
The Crown also sought to rely on the Appellant's 1995 conviction as proof he was the
perpetrator of the sexual assault on J.S., in addition to the evidence of the
eyewitnesses, in particular Mr. Matsutani. The defence opposed the admission of the
evidence, arguing the circumstances of the earlier sexual assault were not sufficiently
similar to the ones in the present offence; the two matters were separated by 12 years;
the prejudicial effect of the 1993 incident outweighed its probative value; and the prior
conviction should not be admitted because of the "rule" in Hollington v. F. Hewthorn
and Company, Limited, [1943] 1 K.S. 587 [po 4, paras. 4-6].
viii)
The Reasons on the voir dire
36.
The trial judge extensively reviewed this Court's jurisprudence on similar fact
evidence, most notably Arp, supra [AS.A Tab 5] and R. v. Handy, [2002] 2 S.C.R.
908 [AS.A Tab 11] [AR., I, pp. 20-28, paras 48-65]. She found the prior offence and
11
the one before her were very similar.
They both involved highly distinctive sexual
assaults on women who were vulnerable and unable to take care of themselves or
communicate at the material time [po 33, para. 76]. The two sexual assaults involved
the insertion of common items into the vaginas of incapacitated women, probably by
use of a blunt instrument [po 34, para. 77]. The trial judge noted Dr. Loubert's evidence
that in 142 examinations of alleged assault victims over 15 years, J.S.'s case was the
only one in which a foreign object had been inserted into the vagina [po 34, para. 78].
37.
The trial Judge found the Crown had a strong circumstantial case against the
Appellant for J.M.'s assault, as he was seen leaving the house where J.M. had passed
out at a time when the cork was in all likelihood inserted and the only other male in the
house was passed out [po 36, para. 86]. It was of a generally similar character to the
1993 assault so there was no significant risk of moral prejudice [po 37, para. 88]. As to
reasoning prejudice, founded on the potential distraction of the trier of fact, the trial
judge found no appreciable risk [po 37, para. 89].
38.
Having found the two occurrences to be sufficiently similar, the trial judge turned
to the evidence that linked the Appellant to the earlier offence. She found on a balance
of probabilities that the Appellant was the same person convicted of the assault on J.S.
Several of the witnesses from the original trial identified him but more importantly, the
fingerprints from his earlier arrest matched his fingerprints from his 2005 arrest for the
assault of J.M. [po 38, para. 92]. The trial judge concluded:
[95] I find that the Crown is entitled to rely on Jesse's conviction by a jury for the
1993 sexual assault for the limited purpose of meeting the burden of proof to a
balance of probabilities that he was its likely perpetrator. I find that I am unable
to come to any other conclusion given that the conviction stands and, by
definition, constitutes an uncontroverted finding and conclusive proof beyond a
reasonable doubt that Jesse committed that offence. Therefore, I find that the
Crown is entitled to rely on the 1995 conviction of Jesse for sexual assault in any
subsequent proceedings involving him, within the normal rules of evidence that
attach to the proper use of prior convictions.
[98] I accept that once a person is tried and convicted of a criminal offence and
either no appeal as to conviction is taken or the appeal or appeals are
unsuccessful, then the matter has been definitively determined, absent a
12
subsequent finding of wrongful conviction. The matter becomes res judicata and
the issue is estopped in relation to further proceedings.
39.
The trial judge concluded the Appellant could not challenge his conviction in
"these proceedings". Upon hearing the oral reasons at the conclusion of the voir dire,
defence counsel clarified that "these proceedings" meant the voir dire. The trial judge
agreed and said the Appellant could take the stand at trial in the trial proper and say
whatever he wanted about the previous conviction [po 46, paras 114-117].
ix)
40.
The Appellant's evidence at trial
The Appellant testified that he worked with Gunnar and Randy for about a year
prior to February of 2005. He had met Gunnar's girlfriend Chelsea once [A.R., I, p.125,
para. 138]. On the night in question, he phoned Gunnar from a pub as he understood
Gunnar's father-in-law had a vehicle for sale. Gunnar came to the pub and the two men
consumed some beer before proceeding to Gunnar's house [po 126, para. 139]. The
Appellant drank more beer and talked to Gunnar and his father-in-law [po 126, para.
141]. He was introduced to J.M. but did not have any particular dealings with her. He
left, declining a ride from Gunnar, who had been drinking. The Appellant walked out to
the highway, along the highway and then up the hill to his home. He urinated in a ditch
off the highway at one point, out of sight of passing cars [po 127, para. 144]. He denied
calling Gunnar that night but did call him on Sunday night about a ride to work. Gunnar
told the Appellant the police were looking for him and they would no longer work
together [po 127, para. 144].
41.
The Appellant admitted he had been convicted in 1995 for sexual assault and
never appealed the conviction [po 128, para. 147]. He agreed he heard Chelsea and
Gunnar talk about going out somewhere before he left the house. The Appellant also
agreed he knew when he left that Randy and J.M. were both passed out, but denied
waiting outside until Gunnar and Chelsea drove away so he could re-enter the house [po
131, para. 155]. He denied returning to their house for an innocent purpose. He denied
having anything to do with J.M. and denied putting plastic bags in J.S.'s vagina in 1993
[po 131, para. 156].
13
x)
42.
The Reasons for Judgment at trial
The trial judge wrote comprehensive reasons for judgment as the Appellant
argued not only that the Crown had not proven he inserted the cork into J.M.'s vagina
but also that the Crown had not proven an assault occurred or that it was a sexual
assault.
43.
The trial judge framed the issues to be decided as: whether a sexual assault took
place; whether there was proof of a lack of consent; and whether the Appellant was the
perpetrator. The last issue required consideration of the weight to be given to the eyewitness identification and the similar fact evidence. The trial judge noted the main issue
was identification of the person who placed the cork in J.M.'s vagina [A.R., I, p. 82-83,
paras. 15-16].
44.
The trial judge reviewed the evidence regarding the events of February 19, 2005,
the alleged sexual assault of J.M. and the similarities of the similar fact evidence. The
Appellant's evidence as to both offences was then extensively reviewed.
45.
The trial judge began her analysis by detailing her findings regarding reliability
and credibility. She accepted the evidence of Chelsea and Gunnar that they believed it
was the Appellant who unlocked the door and brushed by them when they returned to
their home to find their door locked and J.M. naked from the waist down [po 133-134,
136, paras. 163, 164, 168]. The trial judge also accepted J.M.'s evidence that she did
not insert the cork into her own vagina, she experienced pain from its presence and was
shocked to discover it [po 135, para. 167]. The trial judge found it unlikely that Randy
could have been the perpetrator [po 137, para. 170].
46.
The Appellant's evidence was rejected by the trial judge as neither credible nor
reliable. The trial judge found his memory to be detailed as to matters that would assist
him and selectively lacking as to matters where a detailed recollection may hurt his
credibility. She also noted that, where events did not occur as he said, the Appellant
was unable to provide realistic details of the events [po 142, para. 179].
14
47.
Noting that the eye-witness identification by Chelsea and Gunnar of the Appellant
leaving their home was critical to this case, the trial judge reviewed authorities on the
inherent frailties of eye-witness identification.
The trial judge concluded that their
evidence did not suffer from the usual frailties as they both knew the Appellant and they
recognized him at a time they did not expect to see him. The trial judge rejected the
Appellant's evidence that he was not there [pp. 146-147, paras. 188-191]. She
concluded that she did not accept the testimony of the Appellant and that his testimony
did not raise a reasonable doubt about his presence in the residence when Chelsea and
Gunnar returned home [po 148, para. 194].
48.
The trial judge found a sexual assault occurred when the cork was inserted into
J.M.'s vagina [po 151, para. 201]. J.M. did not consent and was incapable of consenting
after she passed out [pp. 152-153, paras. 203-204].
49.
The final question was the identification of the perpetrator of the sexual assault.
The trial judge articulated the test in R. v. W.(D.), [1991] 1 S.C.R. 742 and noted that
she had already outlined why she did not accept the Appellant's evidence and why it did
not raise a reasonable doubt as to who inserted the cork into J.M.'s vagina [po 154,
para. 208]. She then turned to the third stage of the W.(D.) analysis to assess whether
the evidence she accepted proved the Appellant's guilt beyond a reasonable doubt.
50.
By this stage, the trial judge had found that there was a very narrow window of
time during which J.M. was assaulted and that she was alone with two men during that
time: the Appellant and Randy.
The trial judge noted that, in her opinion, Randy
seemed to have been too intoxicated to have engaged in such an activity. The similar
fact evidence then became relevant and was used by the trial judge to elevate the proof
that the Appellant was the perpetrator to proof beyond a reasonable doubt [po 158, para.
218].
xi)
The Court of Appeal for British Columbia
51.
In unanimous Reasons for Judgment written by Chiasson, J.A., the B.C. Court of
Appeal dismissed the appeal, upholding the trial judge's decision to admit the similar
fact evidence.
The Court of Appeal differed only on the legal impediment to the
15
Appellant's challenge to his prior conviction at the voir dire stage, attributing it to abuse
of process rather than issue estoppel.
16
PART II
RESPONDENT'S POSITION ON ISSUES ON APPEAL
52.
The Respondent submits the B.C. Court of Appeal was correct in upholding the
trial judge's conclusions that the Appellant's prior conviction was admissible as similar
fact evidence and the Appellant was not entitled to challenge it in the context of the
similar fact voir dire.
17
PART III
ARGUMENT
A.
Introduction
53.
The Respondent will begin with an overview of the principles of admissibility of
similar fact evidence before moving on to examine the Appellant's specific complaints
about the prejudicial effect of his prior conviction, the nature of a similar fact voir dire
and whether the B.C. Court of Appeal was correct in relying on the doctrine of abuse of
process as a rationale to bar the Appellant from challenging his prior conviction at the
similar fact voir dire.
B.
The Admissibility of Similar Fact Evidence
54.
Similar fact evidence is presumptively inadmissible because it is evidence of an
accused's propensity to commit other bad acts.
It may be admissible where its
probative value exceeds its prejudicial effect. The burden is on the Crown to establish
admissibility.
Handy, supra, at para. 55 [AB.A Tab 11].
55.
Similar fact evidence is circumstantial evidence. In contrasting the rule that the
Crown must prove the voluntariness of a statement beyond a reasonable doubt,
because it may provide conclusive proof of guilt, with the lower burden of proof
concerning the admissibility of similar fact evidence, Cory J. said in Arp, supra [A.B.A
Tab 5]:
[72] Similar fact evidence, on the other hand, as circumstantial evidence, must
be characterized differently, since, by its nature, it does not carry the potential to
be conclusive of guilt. It is just one item of evidence to be considered as part of
the Crown's overall case. Its probative value lies in its ability to support, through
the objective improbability of coincidence, other inculpatory evidence. As with all
circumstantial evidence, the jury will decide what weight to attribute to it. The
mere fact that in a particular case, similar fact evidence might be assigned a high
degree of weight by the trier is entirely different from the concept that, by its very
nature, the evidence has the potential to be decisive of guilt.
56.
At the Appellant's trial, the similar fact evidence did not bear the entire weight of
the Crown's case.
The trial judge accepted the Appellant was one of two possible
18
perpetrators of the sexual assault of J.M. because he was undeniably present at the
party preceding the commission of the offence, aware of the victim's state of intoxication
and one of two men who had access to her.
The police did not identify him as a
suspect because they were stymied in their investigation, culled a database of sexual
offenders, found out he had previously been convicted of highly similar bizarre conduct
and then arrested him solely on the basis of his prior conviction.
57.
Similar fact evidence gains its cogency from the objective improbability of
coincidence. In discussing the narrow exception of admissibility of similar fact evidence,
Binnie J. observed in Handy, supra [A.B.A. Tab 11]:
[44] The criminal trial is, after all, about the search for the truth as well as fairness
to an accused. Thus Lord Herschell, in what is called the second "branch" of
Makin, supra, said at p. 65:
On the other hand, the mere fact that the evidence adduced tends to shew
the commission of other crimes does not render it inadmissible if it be
relevant to an issue before the jury, and it may be so relevant if it bears
upon the question whether the acts alleged to constitute the crime
charged in the indictment were designed or accidental, or to rebut a
defence which would otherwise be open to the accused.
[45] In Makin itself, the death of one small child found buried in the back garden
of the accused could conceivably be thought to be from natural or perhaps
accidental causes, but when numerous other bodies were later dug up in the
same backyard and at previous residences of the accused, the coincidence of so
many premature deaths by innocent causes of babies of recent good health
defied belief. Coincidence, as an explanation, has its limitations. As it was put in
one American case: "The man who wins the lottery once is envied; the one who
wins it twice is investigated" (United States v. York, 933 F.2d 1343 (ih Cir.
1991), at p. 1350).
58.
A comparison of the circumstances of the sexual assault of J.M. and the
Appellant's prior conviction for sexual assault of J.S. defied the objective improbability of
coincidence. The Appellant's prior conviction involved the insertion of objects into J.S.'s
vagina while she was incapacitated by alcohol. The examining physician, Dr. Loubert,
had conducted 142 sexual assault examinations over about 15 years. The only one
where she found foreign objects was in the case where the Appellant had been
convicted.
Subsequently he was at a social gathering, following which J.M. found a
foreign object in her vagina, inserted there while she was unconscious. The conduct in
19
question does not fall into the category of a "garden variety" sexual assault.
It has
highly unusual hallmarks.
59.
The leading case on the admissibility of similar fact evidence as proof of identity
is Arp, supra [A.B.A. Tab 5].
Justice Cory for the Court described both the
improbability based reasoning supported by similar fact evidence and the high degree of
similarity required:
[43] ... [W]here identity is at issue in a criminal case and the accused is shown to
have committed acts which bear a striking similarity to the alleged crime, the jury
is not asked to infer from the accused's habits or disposition that he is the type of
person who would commit the crime. Instead, the jury is asked to infer from the
degree of distinctiveness or uniqueness that exists between the commission of
the crime and the similar act that the accused is the very person who committed
the crime. This inference is made possible only if the high degree of similarity
between the acts renders the likelihood of coincidence objectively improbable .
... That is, there is always a possibility that by coincidence the perpetrator of the
crime and the accused share certain predilections or that the accused may
become implicated in crimes for which he is not responsible. However, where
the evidence shows a distinct pattern to the acts in question, the possibility that
the accused would be repeatedly implicated in strikingly similar offences purely
as a matter of coincidence is greatly reduced ....
[44] Because similar fact evidence is admitted on the basis of an objective
improbability of coincidence, the evidence necessarily derives its probative value
from the degree of similarity between the acts under consideration ....
[45] ... [A] principled approach to the admission of similar fact evidence will in all
cases rest on the finding that the accused's involvement in the alleged similar
acts or counts is unlikely to be the product of coincidence. This conclusion
ensures that the evidence has sufficient probative force to be admitted, and will
involve different considerations in different contexts. Where, as here, similar fact
evidence is adduced on the issue of identity, there must be a high degree of
similarity between the acts for the evidence to be admitted. For example, a
unique trademark or signature will automatically render the alleged acts
"strikingly similar" and therefore highly probative and admissible. In the same
way, a number of significant similarities, taken together, may be such that by
their cumulative effect, they warrant the admission of the evidence. [emphasis in
original].
20
60.
The Arp test for the admissibility of similar fact evidence has two stages. At the
first stage, the trial judge asks whether the similarities are such that it is more likely than
not that the acts in question are the work of one person. To put it another way, does the
evidence disclose sufficient similarities or a distinct pattern so that the most probable
explanation is that the same person committed the acts? This question is determined
on a balance of probabilities standard [Arp, supra, para.48].
61.
At the second stage, the trial judge determines if there is a link between the
similar act and the accused. The applicable standard is not onerous. There need only
be "some evidence" that the act in question was committed by the accused [Arp, supra,
paras. 53-57]. This requirement was described by the authors Paciocco and Stuesser
in the following terms:
Where the judge has determined that the crime charged and the similar act were
likely committed by the same person, the judge is then to ask a second question.
The judge is to determine whether there is some evidence linking the accused to
the similar act. A link between the accused and the similar act is required
because, if admitted, the similar act would be used to show that the accused
committed the crime charged. If there is no link between the accused and that
similar act, how can it be used to connect the accused to the crime charged?
This does not mean that the trial judge has to go so far as to decide that the
accused is probably the perpetrator of the similar act. Since the ultimate decision
whether to use the similar fact evidence is for the trier of fact, at the admission
stage the judge need merely be satisfied that there is some evidence upon which
a reasonable trier of fact can make a proper finding that the accused committed
that similar act. It will be enough if the evidence linking the accused to the similar
act establishes more than a "mere possibility" that he committed it.
David M. Paciocco and Lee Stuesser, The Law of Evidence, 4th ed. (Toronto:
Irwin Law Inc., 2005) at 73 [RB.A. Tab 23].
R. v. Pickton, 2009 BCCA 300,2009 CarswellBC 3825 at paras. 129-166
[R.B.A. Tab 13].
R. v. Sweitzer, [1982] 1 S.C.R 949 at 954 [RB.A. Tab 19].
R. v. Perrier, [2004] 3 S.C.R 228, 2004 SCC 56 at paras. 23-24 [R.B.A. Tab 12].
62.
While acknowledging there may be exceptions, Cory J. in Arp, supra set out this
"general rule" for similar fact in identity cases at para. 50(3):
21
... [A]s a general rule if there is such a degree of similarity between the acts that it
is likely that they were committed by the same person then the similar fact
evidence will ordinarily have sufficient probative force to outweigh its prejudicial
effect and may be admitted.
C.
Probative value versus prejudicial effect
63.
In every case, the admissibility of similar fact evidence depends upon the trial
judge's determination, in the exercise of his or her gatekeeper function over the
admissibility of evidence, that the probative value of the evidence exceeds its prejudicial
effect in respect of the issue or issues for which it is tendered. The determination has
three components: an assessment of the probative value; an assessment of its
prejudicial effect; and a weighing or balancing of the two together.
64.
In assessing the probative value of the evidence, the trial judge must identify the
factors that connect or distinguish the acts under consideration, whether charged or
uncharged. Binnie J. in Handy, supra provided a non-exhaustive list of factors to assist
in that exercise, at para. 82 [AB.A Tab 11]. These factors enable the trial judge and, if
the evidence is admitted, the trier of fact, to determine the strength of the inferences
available from the evidence. Where the inferences the similar fact evidence supports
are highly relevant to the elements of the offence, the similar fact evidence has
significant probative value.
65.
The strength of the evidence sought to be adduced is also relevant to the
assessment of its probative value.
In Shearing, supra [R.B.A Tab 17], where the
accused denied some of the similar acts which were counts on the Indictment, Binnie J.
observed:
[39] As the test of admissibility weighs probative value against prejudice, a
question that quickly emerges is whether the Crown is able to lead cogent
evidence of the alleged similar acts ...
66.
In Handy, supra the Crown applied to adduce evidence that was both extrinsic
to the Indictment and denied by the accused. Charron J.A. (as she then was) for the
Ontario Court of Appeal in Handy (R. v. H.(J.) (2000), 145 C.C.C. (3d) 177 (Ont.C.A»
[R.B.A Tab 7], in considering the strength of the proposed evidence, said:
22
[34] The extent to which the discreditable conduct can be proven has a direct
bearing on its probative value. In cases where the accused denies his or her
involvement in the prior acts, the issue of proof may be important to the inquiry
into its probative value. This is such a case.
[35] Mr. H. denied all of the incidents alleged by Ms. B. The incidents in
question formed the subject-matter of pending proceedings before the court and
were as yet unproven.
See also Paciocco and Stuesser, The Law of Evidence, supra, at p. 55 [RB.A
Tab 23].
R. v. MacCormack (2009), 241 C.C.C. (3d) 516 (Ont.C.A) at para. 64[RB.A
Tab 10].
67.
Like Handy, supra, the instant appeal involves evidence extrinsic to the
Indictment, but a critical difference is that the conduct in question is not an allegation - it
was proven beyond a reasonable doubt in another proceeding.
The Respondent
submits it is thus strong, cogent evidence with a higher probative value than evidence of
untried allegations.
68.
The prejudicial effect of similar fact evidence refers to the risk of:
(1) a jury
wrongly convicting on the basis of general propensity or "bad personhood" (moral
prejudice); and (2) the jury being confused or distracted by the multiplicity of incidents
before them (reasoning prejudice).
Handy, supra, at para. 31 [AB.A Tab 11].
Shearing, supra, at paras. 64-69 [RB.A Tab 17].
R. v. L.B. (1997), 116 C.C.C. (3d) 481 (Ont.C.A), at paras. 22 and 50 [AB.A
Tab 15].
The trial judge in this case had to deal with one extrinsic incident that was no
69.
more heinous than the one the Appellant was being tried for. The prejudicial effect of
the evidence was thus significantly attenuated. Nevertheless, the Appellant advances
several reasons why it is too prejudicial for the Crown to ever be able to rely on a prior
conviction in a similar fact application:
•
a trial judge sitting without a jury will be tainted by hearing of the conviction at the
similar fact voir dire and will be more likely to convict [AF., para. 42];
•
if the trial is by jury, there is a serious risk of moral prejudice if the jury knows of a
previous conviction for similar conduct and may engage in the forbidden chain of
23
reasoning from general disposition to guilt, even if properly instructed by the trial
judge [AF., para 43]; and
•
70.
responding to a prior conviction is an insurmountable task [AF., para 44].
The Respondent submits that trial judges sitting without juries are routinely
entrusted with the duty to examine all the evidence and apply the law. They admit or
exclude confessions after voir dires and are still capable of applying the presumption of
innocence. To label a category of evidence as too prejudicial for a judge sitting without
a jury to hear would require trial judges to recuse themselves after hearing it in a voir
dire.
71.
In a jury trial, the trial judge acts as a gatekeeper to determine if the evidence
carries too high a prejudice in relation to its probative value. If it does, the evidence is
excluded. If the evidence is admitted, a proper jury instruction is the remedy. In R. v.
Corbett, [1988] 1 S.C.R 670 [RS.A Tab 2], in the context of whether it was proper for
the Crown to cross-examine an accused on his criminal record, Dickson C.J. for the
majority said, at p. 692:
In my view, it would be quite wrong to make too much of the risk that the
jury might use the evidence for an improper purpose. This line of thinking could
seriously undermine the entire jury system. The very strength of the jury is that
the ultimate issue of guilt or innocence is determined by a group of ordinary
citizens who are not legal specialists and who bring to the legal process a healthy
measure of common sense. The jury is, of course, bound to follow the law as it
is explained by the trial judge. Jury directions are often long and difficult, but the
experience of trial judges is that juries do perform their duty according to the law.
We should regard with grave suspicion arguments which assert that depriving the
jury of all relevant information is preferable to giving them everything, with a
careful explanation as to any limitations on the use to which they may put that
information. So long as the jury is given a clear instruction as to how it may and
how it may not use evidence of prior convictions put to an accused on crossexamination, it can be argued that the risk of improper use it outweighed by the
much more serious risk of error should the jury be forced to decide the issue in
the dark. [emphasis in original]
See also R. v. D(L.E.) [1989] 2 S.C.R. 111 at p. 128 [RS.A Tab 4].
R. v. G.(S.G.), [1997] 2 S.C.R. 716 at paras. 64-65 [RS.A Tab 6].
72.
Confessions to police are admitted even if they are on their face conclusive of an
accused's guilt, so long as they are not obtained in a manner that violates either the
24
Charier or the law of voluntariness. Details of undercover operations and the resulting
confessions to undercover police officers are admitted and frequently contain damning
admissions that go beyond a confession to a particular crime. An accused may testify
and be cross-examined on his criminal record.
On a trial for breach of probation or
driving while prohibited it is obvious to the trier of fact that prior criminal conduct was
involved.
Careful jury instructions, rather than depriving the trier of fact of relevant,
probative evidence, provide the remedy to any imbalance in the fairness equation.
73.
A prior conviction constitutes stronger, more probative evidence than an
allegation of a prior similar act. That strength may make it more difficult for the defence
to respond to, but does not make the evidence inadmissible. Responding to evidence
of a prior conviction may pose difficulties for the defence, but simply because a piece of
evidence operates unfortunately for an accused or makes the defence of a matter more
difficult does not render the evidence inadmissible or the trial unfair.
74.
The types of similar fact evidence admitted in other cases also refutes the
Appellant's blanket claim of irremediable prejudice that flows from a prior conviction.
The following cases illustrate it is not unusual or impermissible for the Crown to rely on
prior convictions, guilty pleas, or denied unproven conduct as similar fact evidence:
•
Shearing, supra [RB.A. Tab 17]: the Indictment charged the accused with a
variety of sexual offences against young girls. His defence to two of the counts
was denial. The jury was instructed on the use of cross-count similar fact
evidence.
•
R. v. Fisher (2003), 179 C.C.C. (3d) 168 (Sask.C.A.); application for leave to
appeal refused 2004 CarsweliSask 566 [RB.A. Tab 5]: the accused was
charged with murder in the course of a sexual assault. The Crown was permitted
to lead evidence of circumstances from previous guilty pleas by the accused to
sexual assaults to prove he killed the victim in the course of a similar sexual
assault.· The remedy for any resulting prejudice was a careful jury instruction
[para. 56].
•
R. v. James (2006), 213 C.C.C. (3d) 235 (Ont.C.A.); application for leave to
appeal refused [2007] S.C.C.A. No. 234 [RB.A. Tab 8]: the accused was
charged with first degree murder in the course of committing a sexual assault.
The Crown was permitted to lead similar fact evidence stemming from a prior
guilty plea to sexual assault where the accused had beaten a woman when she
rejected his sexual advances.
25
•
R. v. Snow (2004), 190 C.C.C. (3d) 317(Ont.C.A) [RB.A Tab 18]: at the
accused's trial for first degree murder the Crown was allowed to lead, as similar
fact, evidence of other abductions by the accused in the form of the accused's
guilty plea to several of the charges and on the basis of the evidence led at the
preliminary inquiry.
•
R. v. Ford (2000), 145 C.C.C. (3d) 336 (Ont.C.A) [AB.A Tab 10]: the Crown
led evidence of the accused's guilty plea to possession of stolen property to
support the Crown's theory of motive. The defence objected. On appeal from
conviction, the Ontario Court of appeal observed that absent evidence to the
contrary a guilty plea is assumed to be voluntary and informed:
[36] ... It works no injustice on the accused to permit the guilty plea and
conviction to be admitted as evidence of the truth of the facts for which
they stand at a subsequent criminal trial: see R. v. Duong (T.D.) (1998),
108 O.AC. 378. It remains open to the accused to challenge or explain
the previous conviction if he so desires. No challenge or explanation was
made in this case.
•
R. v. W.B.C. (2000), 142 C.C.C. (3d) 490 (Ont.C.A); aff'd [2001] 1 S.C.R 530
[AB.A Tabs 27 and 28]: the accused's guilty plea to a prior sexual assault was
admitted as similar fact evidence. The accused testified and denied his guilt,
claiming he pleaded guilty because his lawyer and the Crown had made a deal.
His recantation went to the weight to be accorded to the prior admission of guilt,
not its admissibility [at para. 61].
•
R. v. Blake (2003), 181 C.C.C. (3d) 169 (Ont.C.A); affirmed 2004 SCC 9 [RB.A
Tab 1]: the accused's guilty plea and prior conviction for sexual offences against
children were admitted as similar fact evidence. A majority of the Ontario Court
of Appeal allowed the appeal and ordered a new trial as the decision to admit the
evidence pre-dated Handy. Abella J.A, in dissent, commented on the strength
of the evidence at para. 17.
•
R. v. Rurak, 2006 CarsweliAlta 1243, ABPC 251 [RB.A Tab 15]:
the
Information, with its endorsements of findings of guilt from a previous trial, was
relevant and admissible evidence if the Crown could prove it related to the same
person before the court in the current prosecution. It would be relevant evidence
of the identity of the person who committed the previous sexual assaults [at para.
10].
•
R. v. Olsen (1999), 131 C.C.C. (3d) 355 (Ont.C.A) [RB.A Tab 11]: in a
prosecution for the murder of a baby girl, evidence that the girl's father had
previously pleaded guilty to aggravated assault of his two month-old son was
relevant to the identity of the killer and to intent for murder [paras. 7-17].
26
• R. v. Corbett, supra, at p. 688 [R.B.A. Tab 3]:
It is the case that apart from its relevance to credibility, evidence of
prior convictions would be inadmissible unless it met one of the
exceptions to the general exclusion of similar fact evidence. Such
evidence does not constitute proof that the accused committed the
offence for which he is now being tried: Makin v. Attorney-General
for New South Wales [citation omitted], Koufis v. The King [citation
omitted]; R. v. Stratton [page reference omitted].
75.
The Appellant has not identified any evidentiary barrier to the admission of a prior
conviction as similar fact evidence, either generally or specifically to link the accused to
the prior conduct, where it is probative of an issue at trial. To deprive the trier of fact of
relevant and probative evidence because it resulted in a conviction, making it by
necessary
implication
strong
and
probative
evidence,
is
counterintuitive,
counterproductive and an artificial barrier to the search for the truth.
D.
The similar fact voir dire
76.
The admissibility of similar fact evidence is determined by the trial judge in his or
her gatekeeper role. If admitted, it is up to the trier of fact, whether judge alone or jury,
to use the evidence for the purpose(s) it is admitted. While this Court has set out the
law surrounding the admissibility and use of similar fact evidence, the conduct of a
similar fact voir dire is left to the discretion of the trial judge.
The Crown may call
witnesses or rely on prior admissions of guilt, witness statements, summaries of
anticipated evidence or preliminary hearing evidence.
77.
The flexibility trial judges have in conducting similar fact voir dires is illustrated in
R. v. Snow, supra [R.B.A. Tab 18]. The accused was charged with first degree murder
for the abduction and killing of two people. The Crown sought to lead, as similar fact,
evidence that the accused had committed other abductions. The trial judge proceeded
at the similar fact admissibility voir dire on the basis of the accused's guilty pleas to
some of those matters and on the basis of the evidence from the preliminary inquiry,
while inviting the accused to call any witnesses he thought significant. The accused
refused and maintained he had the right to cross-examine all similar fact witnesses
before the admissibility ruling. The Court of Appeal said:
27
[61] The appellant submitted before this court that the procedure adopted by the
trial judge constitutes an error of law. We did not call upon the respondent on
this ground of appeal as, in our view, it is without merit. The procedure adopted
by the trial judge was appropriate in the circumstances of this case. This was not
evidence (for example, a statement by the accused) where the Crown was
required to prove certain facts (voluntariness) as a prerequisite for admissibility.
In the circumstances of this case, the admissibility of the similar fact evidence did
not require the testing of circumstances surrounding the evidence, nor, was there
uncertainty about what the witnesses might say. The trial judge was entitled to
adopt a more expeditious procedure that was entirely adequate to test the
admissibility of the similar fact evidence: R. v. D.{G.N.)(1993), 81 C.C.C. (3d) 65
(Ont.C.A); R. v. Carpenter (1982), 1 C.C.C. (3d) 149 (Ont.C.A); R. v. Dietrich
(1970), 1 C.C.C. (2d) 49 (Ont.C.A) at 62.
78.
Notwithstanding the flexibility trial judges have concerning the conduct of voir
dires generally, the Appellant appears to take the position, at paras 51-52 of his factum,
that at a similar fact voir dire the Crown must prove guilt beyond a reasonable doubt
(and in the case of a prior conviction, for a second time) because to hold otherwise
would violate the presumption of innocence. The Respondent submits, with respect,
this position does not accord with similar fact jurisprudence or with the approach to the
admissibility of evidence generally, apart from the exception that the Crown must prove
the voluntariness of an accused's statement beyond a reasonable doubt. It is also out
of step with the principle that similar fact evidence is no more than circumstantial
evidence which, when taken with the rest of the Crown's case, might assist in proving
the offence beyond a reasonable doubt.
79.
A similar argument concerning the requisite burden of proof was considered and
rejected in Arp, supra [AB.A Tab 5]. Defence counsel argued it was contrary to the
presumption of innocence and principles of fundamental justice for an accused to be
convicted on the basis of similar fact evidence when the Crown had not proven beyond
a reasonable doubt that one person committed both offences. Cory J. said:
[68] ... 1 cannot accept this submission. As the Attorney General for Ontario
stated, it cannot be presumed that because a preliminary determination of fact is
not proven to the criminal standard, that the trier of fact is thereby invited to make
use of evidence which lacks its purported probative value. It is not inherently
unfair that an accused may be convicted even though the jury entertains a doubt
as to whether similarity between the acts, on its own, establishes that the same
person committed both acts. The appellant's argument presumes that similarity
28
proven to a lesser degree of certainty is without probative value. If the appellant
is right, then on the same reasoning, it would have to be concluded that R. v.
Carter, [1982] 1 S.C.R 938, was wrongly decided.
80.
After referring to the issue in Carter, where this Court declined to require the
Crown prove a preliminary finding of fact respecting a conspiracy beyond a reasonable
doubt, Cory J. continued:
[70] More generally, in R. v. Evans, [1993] 3 S.C.R 653, it was held that a
preliminary finding of fact governing the use of evidence is normally subject to
the civil standard of proof, whether the finding is made by the trial judge at the
stage of admissibility or by the jury at the outset of their deliberations.
81.
When a trier of fact considers whether the similarities between two counts (or
acts) were committed by the same person, the determination is on a balance of
probabilities [Arp, supra, para. 70]. It would, with respect, make no sense to require
the Crown to prove similar fact evidence beyond a reasonable doubt in a voir dire, then
allow the trier of fact to act on it on a balance of probabilities in concert with all the other
evidence.
82.
As Dickson J. (as he then was) said in Erven v. The Queen, [1979] 1 S.C.R. 926
at p. 931 [AB.A Tab 1]:
It is axiomatic that the voir dire and the trial itself have distinct functions. The
function of the voir dire is to determine the admissibility of evidence. The
function of the trial is to determine the merits of the case on the basis of
admissible evidence.
83.
This distinction has survived the enactment of the Charter. In R. v. Pires; R. v.
Lising, [2005] 3 S.C.R 343 [RB.A Tab 14], this Court considered a challenge to the
rule that the defence needs to meet an evidentiary threshold to obtain leave to crossexamine a police officer who files an affidavit in support of a wiretap authorization.
Charron J. for the unanimous Court said:
[28] The appellants' argument, more particularly in respect of the broad right to
cross-examination, fails to distinguish between the right to test evidence
introduced at the trial on the merits and the threshold evidentiary hearing to
determine the admissibility of that evidence.
See also R. v. Vukelich (1996), 108 C.C.C. (3d) 193; leave refused [1996]
S.C.C.A No. 461 at paras. 17-20,26 [R.B.A Tab 20].
29
R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57 at paras. 2, 3, 50 and 93
[R.B.A Tab 9].
84.
What the Appellant really seeks in this case is an exceptional category of similar
fact evidence - the denied prior conviction - which requires a re-trial of the previous
matter. He refers to Charron J.A (as she then was) in L.B., supra, at para. 26 [AB.A
Tab 15] where she said "In some cases, the discreditable conduct will have been the
subject-matter of a conviction and, provided the evidence remains available, it will be
capable of proof beyond a reasonable doubt."
85.
The Respondent submits this observation means that a prior conviction can be
admitted where the evidence is available and admissible and will assist the prosecution
in proving the charge before the court beyond a reasonable doubt. It does not mean
that a prior conviction has to be proven again beyond a reasonable doubt to be
admitted. Similar fact evidence does not have to be proven beyond a reasonable doubt,
either at the voir dire stage or in the trial proper. Its evidentiary value, taken with all the
other evidence, may assist the Crown with proof beyond a reasonable doubt, but it is
not on its own subject to the criminal burden of proof.
86.
The Appellant's argument about proof beyond a reasonable doubt at a similar
fact voir dire is not necessary for the right to make full answer and defence and is out of
step with the clear distinction between voir dires and trials, as recognized in the
jurisprudence.
The Appellant was afforded a full and fair opportunity to test the
evidence at the similar fact voir dire even though the trial judge concluded, in retrospect,
that he could not challenge his conviction.
The trial judge's conclusion to admit the
evidence reveals no error in law.
E.
Abuse of process and the principle of finality in litigation
87.
A corollary to the Appellant's position that similar fact evidence should be proven
beyond a reasonable doubt, even when it has already been the subject of a conviction,
is his assertion of an ongoing entitlement to challenge his prior conviction with a view to
preventing the Crown from tendering it as similar fact evidence. The Appellant refers to
the doctrine of issue estoppel in this regard. The Respondent submits the B.C. Court of
Appeal correctly identified abuse of process as the bar to the Appellant's attempt at
30
relitigation of his prior conviction at the voir dire stage, while upholding the Appellant's
right at trial to deny his prior conviction and test the evidence called in support of it.
This finding is consistent with the approach of other appellate courts where similar fact
conduct arising from prior convictions or pleas of guilty is disputed: W.B.C, supra and
Ford, supra [AB.A Tabs 10 and 27]. The dispute goes to the weight to be given the
evidence by the trier of fact, not the admissibility of the evidence.
88.
Abuse of process was considered by this Court in Toronto (City) v. C.U.P.E.,
supra [AB.A Tab 2], where a labour arbitrator determined that an employee's criminal
conviction for sexual assault was admissible evidence but was not conclusive as to
whether the employee had sexually assaulted the victim.
The arbitrator found the
presumption raised by the criminal conviction was rebutted by the employee's denial of
his guilt and ruled he had been dismissed without just cause. Arbour J. for the majority
said:
[15] In this case, the reasonableness of the arbitrator's decision to reinstate the
grievor is predicated on the correctness of his assumption that he was not bound
by the criminal conviction. That assumption rested on his analysis of complex
common law rules and of conflicting jurisprudence. The body of law dealing with
the relitigation of issues finally decided in previous judicial proceedings is not
only complex; it is also at the heart of the administration of justice. Properly
understood and applied, the doctrines of res judicata and abuse of process
govern the interplay between different judicial decision makers. These rules and
principles call for a judicial balance between finality, fairness, efficiency and
authority of judicial decisions ... [Respondent's emphasis].
89.
Arbour J. considered the potential application of issue estoppel (one branch of
res judicata), the collateral attack rule and abuse of process to the issue before the
Court. In determining the latter applied, Arbour J. acknowledged abuse of process is
used in a variety of legal contexts and at times may be subsumed into Charter
principles where there is overlap between abuse of process and constitutional remedies
[para. 36] and explained:
[37] In the context that interests us here, the doctrine of abuse of process
engages "the inherent power of the court to prevent the misuse of its procedure,
in a way that would ... bring the administration of justice into disrepute" (Canam
Enterprises Inc. v. Coles [citation omitted], at para. 55, per Goudge J.A,
31
dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63».
expanded on that concept in the following terms at paras. 55-56:
Goudge J.A.
The doctrine of abuse of process engages the inherent power of
the court to prevent the misuse of its procedure, in a way that would be
manifestly unfair to a party to the litigation before it or would in some other
way bring the administration of justice into disrepute. It is a flexible
doctrine unencumbered by the specific requirements of concepts such as
issue estoppel. See House of Spring Gardens Ltd. v. Waite [citation
omitted].
One circumstance in which abuse of process has been applied is where
the litigation before the court is found to be in essence an attempt to
relitigate a claim which the court has already determined. [Emphasis
added.]
90.
Arbour J. noted that the doctrine of abuse of process "has been extended beyond
the strict parameters of res judicata while borrowing much of its rationales and some of
its constraints" [para. 38]. The doctrine is attractive because "it is unencumbered by the
specific requirements of res judicata while offering the discretion to prevent relitigation,
essentially for the purpose of preserving the integrity of the court's process" [para. 42].
Arbour J. acknowledged that critics maintain that when abuse of process is used as a
"proxy" for issue estoppel:
[43] ... it obscures the true question while adding nothing but a vague sense of
discretion. I disagree. At least in the context before us, namely, an attempt to
relitigate a criminal conviction, I believe that abuse of process is a doctrine much
more responsive to the real concerns at play. In all of its applications, the
primary focus of the doctrine of abuse of process is the integrity of the
adjudicative functions of courts. Whether it serves to disentitle the Crown from
proceeding because of undue delays (citation omitted) or whether it prevents a
civil party from using the courts for an improper purpose (citation omitted), the
focus is less on the interest of parties and more on the integrity of judicial
decision making as a branch of the administration of justice. In a case such as
the present one, it is that concern that compels a bar against relitigation, more
than any sense of unfairness to a party being called twice to put its case forward,
for example. When that is understood, the parameters of the doctrine become
easier to define, and the exercise of discretion is better anchored in principle.
[Respondent's emphasis]
91.
While most of the authorities cited in support of a court's power to prevent
relitigation of decided issues, where issue estoppel does not apply, involve an attack on
a criminal conviction in a civil proceeding, Arbour J. found no reason in principle for
32
limiting abuse of process to specific circumstances [para 49] nor should its application
be dependent on the motive or interests of a party:
[51] Rather than focus on the motive or status of the parties, the doctrine of
abuse of process concentrates on the integrity of the adjudicative process.
Three preliminary observations are useful in that respect. First, there can be no
assumption that relitigation will yield a more accurate result than the original
proceeding. Second, if the same result is reached in the subsequent proceeding,
the relitigation will prove to have been a waste of judicial resources as well as an
unnecessary expense for the parties and possibly an additional hardship for
some witnesses. Finally, if the result in the subsequent proceeding is different
from the conclusion reached in the first on the very same issue, the
inconsistency, in and of itself, will undermine the credibility of the entire judicial
process, thereby diminishing its authority, its credibility and its aim of finality.
[52] In contrast, proper review by way of appeal increases confidence in the
ultimate result and affirms both the authority of the process as well as the finality
of the result. It is therefore apparent that from the system's point of view,
relitigation carries serious detrimental effect and should be avoided unless the
circumstances dictate that relitigation is in fact necessary to enhance the
credibility and the effectiveness of the adjudicative process as a whole. There
may be instances where relitigation will enhance, rather than impeach, the
integrity of the judicial system, for example: (1) when the first proceeding is
tainted by fraud or dishonesty; (2) when fresh, new evidence, previously
unavailable, conclusively impeaches the original results; or (3) when fairness
dictates that the original result should not be binding in the new context. This
was stated unequivocally by this Court in Danyluk, supra, at para .. 80.
[Respondent's emphasis]
92.
Arbour J. noted, at para. 53, there are circumstances in which the bar against
relitigation would create an unfairness, such as where the first proceeding was not
defended vigorously because the stakes were not high, or where new evidence came to
light or the original proceeding was somehow tainted:
[54] These considerations are particularly apposite when the attempt is to
relitigate a criminal conviction. Casting doubt over the validity of a criminal
conviction is a very serious matter. Inevitably in a case such as this one, the
conclusion of the arbitrator has precisely that effect, whether this was intended or
not. The administration of justice must equip itself with all legitimate means to
prevent wrongful convictions and to address any real possibility of such an
occurrence after the fact. Collateral attacks and relitigation, however, are not in
my view appropriate methods of redress since they inordinately tax the
adjudicative process while doing nothing to ensure a more trustworthy result.
[Respondent's emphasis]
33
93.
Rather than endorse, as the lower court did, a self-standing and independent
finality principle, the majority found the common law doctrines of issue estoppel,
collateral attack and abuse of process "adequately capture the concerns that arise when
finality in litigation must be balanced against fairness to a particular litigant." [at para.
55].
In the result, the majority found the grievor's conviction, against which he had
exhausted all his avenues of appeal, with all its consequent legal effects, must stand
[para. 56].
94.
The Respondent submits it is apparent from the reasons in Toronto (City) v.
C.U.P.E. that abuse of process is not confined to the consideration of a criminal
conviction in a civil context. The importance offinality in litigation does not, and cannot,
assume a lesser role in the criminal law sphere. An illustration of the importance of the
principle of finality, as expressed in the context of raising a new argument on appeal,
appears in Justice L'Heureux-Dube's dissenting reasons in R. v. Brown, [1993] 2
S.C.R 918 at 923 [RB.A. Tab 2]:
... [T]he general prohibition against new arguments on appeal supports the
overarching societal interest in the finality of litigation in criminal matters. Were
there to be no limits on the issues that may be raised on appeal, such finality
would become an illusion. Both the Crown and the defence would face
uncertainty, as counsel for both sides, having discovered that the strategy
adopted at trial did not result in the desired or expected verdict, devised new
approaches. Costs would escalate and the resolution of criminal matters could
be spread out over years in the most routine cases. Moreover, society's
expectation that criminal matters will be disposed of fairly and fully at the first
instance and its respect for the administration of justice would be undermined.
Juries would rightfully be uncertain if they were fulfilling an important societal
function or merely wasting their time. For these reasons, courts have always
adhered closely to the rule that such tactics will not be permitted.
See also R. v. Sarson, [1996] 2 S.C.R 223 at paras 34-36 [RB.A. Tab 16].
Schreiber v. Canada (Attorney General), 2008 CarswellNat 1211, 2008 FCA
147 [RB.A. Tab 21].
Gary T. Trotter, Justice, Politics and the Royal Prerogative of Mercy: Examining
the Self-Defence Review, (2001), 26 Queen's L.J. 339 at paras. 47-57 [RB.A.
Tab 22].
95.
As a general rule, the doctrine of abuse of process by relitigation would apply to
the entire subsequent proceeding to prevent challenges to a prior conviction; however,
there may be exceptions, as delineated by this Court in Toronto (City) v. C.U.P.E.,
34
supra at para. 52. The third factor or exception (what is required in the interests of
fairness) is what may distinguish the application of the doctrine in a voir dire from its
application in a trial. Fairness in a criminal trial may well require providing an accused
the ability to challenge a prior conviction which the Crown seeks to lead as similar fact
evidence. The context of a similar fact voir dire, however, is such that fairness does not
require an opportunity for an accused to challenge a prior conviction. The purpose of
the voir dire is to screen evidence to assess its admissibility against the standard of: (1)
whether the similarities are such that it is more likely than not that the acts in question
are the work of one person and (2) that there is "some" evidence to connect the prior act
to the individual. With that threshold in mind, a challenge to a prior conviction will not
alter the admissibility analysis unless there is evidence to address one of the other two
factors in Toronto (City) v. C.U.P.E. (first proceeding tainted by fraud or dishonesty or
fresh evidence which impeaches the original result).
96.
Fairness, like other rights, must be assessed in context. And, as this Court said
in Pires, supra, U[t]here is no point in permitting cross-examination if there is no
reasonable likelihood that it will impact on the question of the admissibility of the
evidence" [R.B.A Tab 14, para. 31]. The inability to affect the outcome must also be
considered in light of the concern about "the constructive use of judicial resources"
[Pires, para. 35]. For these reasons, neither fairness nor the right to full answer and
defence requires an opportunity for a challenge to a prior conviction at a similar fact voir
dire.
F.
Application to the judgments below
97.
The trial judge, in her ruling admitting the prior conviction as similar fact evidence
after hearing all the evidence and submissions of counsel, determined the Appellant
could not challenge his prior conviction at the voir dire stage. She relied on the doctrine
of issue estoppel, but without the benefit of this Court's decision in R. v. Mahalingan,
[2008] 3 S.C.R. 316,2008 SCC 63 [AB.A Tab 19]. On appeal from conviction, after
Mahalingan was decided, the B.C. Court of Appeal found the trial judge was correct to
say the Appellant could not challenge his prior conviction at the voir dire stage, but
35
found the impediment to be abuse of process, rather than issue estoppel, relying on
Toronto (City)
98.
v. C.U.P.E.
The Appellant relies on para. 42 of Mahalingan, supra to argue that abuse of
process is not available in the context engaged by this case [A.F., para. 75]. At para.
42, McLachlin C.J. for the majority observed "the remedy of abuse of process mayor
may not provide protection against relitigation of a particular issue" and went on to note
it is a "broad, somewhat vague concept, that varies with the eye of the beholder." The
Respondent submits this observation must be seated in the appropriate factual context.
Mahalingan concerned the effect of a prior acquittal on a subsequent trial where the
Crown relied in part on some of the evidence it tendered at the earlier proceeding. The
majority determined the Crown was estopped in relation to issues necessarily resolved
in the accused's favour as part of the acquittal or on which findings were made.
99.
At para. 46, McLachlin C.J. noted the goals served by issue estoppel include:
[46] ... [P]reservation of the related institutional value of judicial finality and
economy. Judicial finality and economy are essential to preserving confidence in
the justice system.
Criminal proceedings should not go on longer than
necessary. Once factual issues are determined one way or the other, they
should be deemed finally determined, subject to appeal. Relitigation should not
be permitted. This rule is consistent with the Crown's duty to be diligent in
garnering evidence and pursuing its case; the Crown will be encouraged in its
duty by the knowledge that it will not be permitted a second chance.
Issue estoppel and abuse of process thus have a shared rationale - the institutional
value of judicial finality and economy - but they are context dependent. In the context of
an acquittal, the majority in Mahalingan was concerned that abuse of process placed
too high a threshold on an accused who had previously been exonerated to resist the
Crown's efforts to relitigate the same issue. Where a conviction is concerned, however,
the Respondent submits the doctrine of abuse of process applies, as this Court held in
Toronto (City)
100.
v. C.U.P.E.
To frame the issue in its starkest terms, if the Crown is not permitted a second
chance at litigating an acquittal in a subsequent proceeding, the corollary is that an
accused should not be permitted a second chance at litigating his prior conviction
36
outside of the proper appeal channels provided for in the Criminal Code.
But the
decision of the B.C. Court of Appeal in this case did not go nearly so far because it did
not constrain the Appellant's ability to challenge the evidence in the trial proper.
Chiasson J.A for the Court determined that to allow the Appellant's challenge to his
prior conviction at the voir dire stage would have been an abuse of process by
relitigation.
The similar fact voir dire was concerned with preliminary findings of
admissibility, not with the soundness or ultimate evidentiary value of the result from the
previous trial. There was no indication, nor has the Appellant attempted to demonstrate
any in a fresh evidence application before this Court or before the B.C. Court of Appeal,
that the first proceeding was tainted by fraud or dishonesty or that new, previously
unavailable evidence conclusively impeached the original result [para. 52 of Toronto
(City) v. C.U.P.E., supra].
101.
The third criterion from Toronto (City) v. C.U.P.E., fairness, was respected
throughout the proceedings. It is the Respondent's submission that, at most, fairness
required the Appellant be permitted to deny his prior conviction at the trial stage. But
the reality in this case was quite different. The trial judge did not make a ruling about
the prior conviction until the conclusion of the voir dire. As a result, the Appellant was
not prevented from testifying during the similar fact voir dire and his lawyer thoroughly
challenged every aspect of the admissibility of the prior conviction - whether the
evidence met the similar fact admissibility standard and whether its probative value
outweighed its prejudicial effect. Defence counsel went through the same exercise with
the similar fact witnesses in the trial proper.
The Appellant gave evidence at trial,
unrestricted in what he could say about the prior conviction.
In accordance with the
approach in IN..B.C. and Ford, supra [AB.A. Tabs 10 and 27] and R. v. M.B., [2011]
O.J. No. 428 (C.A.) [AB.A Tab 16], his denial of the prior conviction was a matter of
weight for the trial judge to consider.
Conclusion
102.
The similar fact evidence in this case had resulted in a prior conviction, making it
strong, cogent evidence.
The trial judge thoroughly considered the principles of
admissibility of similar fact evidence established by this Court and determined the
37
probative value of the evidence outweighed its prejudicial effect.
The B.C. Court of
Appeal applied the correct deferential standard to the trial judge's decision to admit the
evidence. The Respondent submits there is no reason to exclude evidence of a prior
conviction, nor is there any reason to require the Crown to re-prove its case beyond a
reasonable doubt as a precondition to its admissibility.
103.
Even if this Court were to find error and conclude an accused can challenge a
prior conviction on a similar fact voir dire, that error would have no effect on the
outcome of this case.
The trial judge's decision about the admissibility of the prior
conviction and ability to challenge it was made after the conclusion of the voir dire. As a
result, the Appellant had free rein to challenge the underlying circumstances of his prior
conviction and the fact he was convicted in the context of the voir dire.
He had the
same opportunity at trial and his ability to testify about the prior conviction was not
circumscribed in any way by the trial judge.
Simply put, the Appellant was properly
convicted after a procedurally fair and substantively sound trial.
Respondent relies on the curative proviso in s. 686(1 )(b )(iii).
If necessary, the
38
PART IV
COSTS
104.
The Respondent makes no submission as to costs.
PART V
ORDER SOUGHT
105.
The Respondent respectfully requests that the appeal from the decision of the
B.C. Court of Appeal be dismissed.
ALL OF WHICH IS RESPECTULLY SUBMITTED.
Elizabeth A. Campbell
Counsel for the Respondent
June 27,2011
Vancouver, British Columbia
39
PART VI
TABLE OF AUTHORITIES
PARAGRAPH
R. v. Arp, [1998] 3 S.C.R. 339 ................................ 6, 9, 36, 55, 59,60, 61, 62, 79, 81
Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77,
2003 SCC 63 ............................................................. 10, 88, 94, 95, 99, 100 ,101
R. v. Handy, [2002] 2 S.C.R. 908 .......................................... 36, 54, 57, 64, 66, 67, 68
David M. Paciocco and Lee Stuesser, The Law of Evidence, 4th ed.
(Toronto: Irwin Law Inc., 2005) ................................................................... 61,66
R. v. Pickton, 2009 BCCA 300, 2009 CarswellBC 3825 ........................................... 61
R. v. Sweitzer, [1982] 1 S.C.R. 949 at 954 ............................................................... 61
R. v. Perrier, [2004] 3 S.C.R. 228, 2004 SCC 56 ...................................................... 61
R. v. Shearing, [2002] 3 S.C.R. 33 .............................................................. 65,68,74
R. v. H.(J.) (2000), 145 C.C.C. (3d) 177 (Ont.C.A.) ................................................... 66
R. v. L.B. (1997), 116 C.C.C. (3d) 481 (Ont.C.A.) ............................................... 68,84
R. v. MacCormack (2009),241 C.C.C. (3d) 516 (Ont.C.A.) ..................................... 66
R. v. Corbett, [1988] 1 S.C.R. 670 ...................................................................... 71, 74
R. v. D(L.E.) [1989] 2 S.C.R. 111 ..............................................................................71
R. v. G.(S.G.), [1997] 2 S.C.R. 716 ..........................................................................71
R. v. Fisher (2003), 179 C.C.C. (3d) 168 (Sask.C.A.) .............................................. 74
R. v. James (2006),213 C.C.C. (3d) 235 (Ont.C.A.) ............................................... 74
R. v. Snow (2004), 190 C.C.C. (3d) 317(Ont.C.A.) ............................................. 74, 77
R. v. Ford (2000), 145 C.C.C. (3d) 336 (Ont.C.A ........................................ 74, 87, 101
R. v. W.B.C. (2000), 142 C.C.C. (3d) 490 (Ont.C.A.) .................................. 74, 87, 101
R. v. Blake (2003),181 C.C.C. (3d) 169 (Ont.C.A.) .................................................. 74
R. v. Rurak, 2006 CarsweliAlta 1243, ABPC 251 ..................................................... 74
R. v. Olsen (1999), 131 C.C.C. (3d) 255 (Ont.C.A.) .................................................. 74
Erven v. The Queen, [1979] 1 S.C.R. 926 ................................................................ 82
R. v. Pires, R. v. Lising, [2005] 3 S.C.R. 343 ..................................................... 83, 96
R. v. Vukelich (1996),108 C.C.C. (3d) 193 (8.C.C.A.) ............................................. 83
40
PARAGRAPH
R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC .................................................... 83
R. v. Brown, [1993] 2 S.C.R. 918 ............................................................................. 94
R. v. Sarson, [1996] 2 S.C.R. 223 ........................................................................... 94
Schreiber v. Canada (Attorney General), 2008 CarsweliNat 1211,
2008 FCA 147 ................................................................................................... 94
Gary T. Trotter, Justice, Politics and the Royal Prerogative of Mercy:
Examining the Self-Defence Review, (2001),26 Queen's L.J. 339 ................... 94
R. v. Mahalingan, [2008] 3 S.C.R. 316, 2008 SCC 63 ................................. 97, 98, 99
R. v. M.B., [2011] O.J. No. 428 (C.A.) ..................................................................... 101
41
PART VII
STATUTORY PROVISIONS
106.
The Respondent does not rely on any statutory provisions.