R. v. Harvey, 2001 CanLII 24137 (ON CA)

Her Majesty the Queen v. Harvey [Indexed as: R. v. Harvey]

57 O.R. (3d) 296

[2001] O.J. No. 4749

Docket Nos. C33286 to C33296

Court of Appeal for Ontario

Doherty, Sharpe and Simmons JJ.A.

December 3, 2001

• Note: An order made at trial under s. 486(3) of the Criminal Code protecting the identity of the complainant remains in force.

Criminal law -- Evidence -- Identification evidence -- Unreasonable verdict -- Twelve-year-old complainant sexually assaulted in middle of night while sleeping in tent -- Complainant saw attacker only for several seconds in darkness -- Description to police not detailed but noting distinctive hair of attacker -- Accused suspected of offence within days but no line-up done for more than two years -- Complainant selecting photograph of accused and stating based on accused's distinctive hair and eyes -- Crown's case based entirely on identification evidence -- Trial judge mistakenly believed that complainant had given detailed description to police including mention of eyes of attacker -- Significant time gap between offence and line-up severely undermining reliability of line-up -- Identification not sufficiently reliable to support a conviction -- Verdict unreasonable -- Appeal allowed and acquittal entered.

Criminal law -- Evidence -- Similar fact evidence -- Sexual assault charge alleging accused fondling young complainant in tent during night -- Crown seeking to adduce similar fact evidence involving alleged sexual assault on girl in tent during night -- Trial judge excluding proposed evidence on basis that prejudicial effect outweighing probative value -- Crown's case based entirely on unreliable identification evidence -- Court of Appeal concluding that verdict unreasonable -- Crown arguing that new trial should be ordered on basis that trial judge erred in excluding similar fact evidence and that combined effect of identification and similar fact evidence sufficient to permit new trier to fact to convict -- Trial judge's ruling regarding admission of similar fact evidence entitled to deference as not clearly unreasonable -- Appeal allowed and acquittal entered.

Criminal law -- Appeals -- Unreasonable verdict -- Powers of appellate court -- Significant time gap between offence and line-up severely undermining reliability of line-up -- Identification based on seeing attacker for several seconds in dark after being awakened during night -- Crown's case based solely on unreliable identification evidence -- Appellate court concluding verdict unreasonable as identification untrustworthy -- Crown seeking new trial rather than an acquittal on basis that trial judge erred in excluding proposed similar fact evidence -- Crown arguing that similar fact evidence combined with identification evidence sufficient to support a conviction -- Trial judge's ruling excluding similar fact evidence entitled to deference as not clearly unreasonable -- Appeal allowed and acquittal entered -- Criminal Code, R.S.C. 1985, c. C-46, s. 686(2)

The accused was charged with sexual assault. In 1991, the complainant, who was 12 years old at the time, was fondled by a man who entered her tent in a campground in the middle of the night. She saw him for five or six seconds before he ran away. Her tent was found to be slashed. She described the intruder to the police as having "greying or whitish wavy" hair. Twenty- eight months later, the complainant was shown a photo line- up. She selected the photograph of the accused, stating that she was sure he was the intruder because of his eyes and hair. She asked to see the pictures again to be sure that she had picked the right one, but the police officer refused to show them to her. At trial, the Crown tendered evidence of a sexual assault committed by the accused in 1985, six years before this incident. The Crown claimed that the circumstances surrounding the 1985 assault and the assault charged in this case were sufficiently similar to warrant admitting the evidence of the prior assault as circumstantial evid ence identifying the accused as the perpetrator of the assault charged. The 1985 incident involved an attack on a young girl who was sleeping in a tent at a campground. Both incidents occurred in the dead of night. While they did not occur at the same campsite, both were located in the same part of the province. Both victims were fondled by their attacker. In both incidents, one or more tents at the scene of the assaults were slashed in an "L"-shaped fashion. In the 1985 incident, the victim's tent was not slashed, but some of the other tents were slashed. The trial judge had doubts as to the probative value of the similar fact evidence and considered it to be highly prejudicial. She referred to the "highly prejudicial effect of similar fact evidence in cases of this kind and in offences where public disapproval is extremely high". She held that the evidence was inadmissible. The accused was convicted. He appealed.

Held, the appeal should be allowed.

Per Doherty J.A. (Simmons J.A. concurring): The verdict was unreasonable. The trial judge misapprehended a significant feature in the evidence, and her misapprehension figured prominently in her decision to convict the accused. She was under the impression that the complainant had given a detailed description of the attacker, in which she mentioned the accused's eyes, as well as his hair, in her initial statement to the police. Her initial description was not detailed, and the only physical characteristic she mentioned was his hair. Her reference to the accused's eyes had much less probative value when it was made only after she saw a photograph in which the eyes were a prominent feature. While the accused was a suspect within days of the incident, the line-up was not conducted for almost 2 1/2 years. The long time span between the incident and the line-up severely undermined the value of the identification made in that line-up. The case for the Crown rested entirely on the identification made at the photo line- up. That identification was not sufficiently trustworthy to support a conviction.

Although s. 686(2) of the Criminal Code allows an appellate court to either enter an acquittal or order a new trial when a verdict is found to be unreasonable, it usually enters an acquittal. An acquittal is usually the appropriate order because it would be unfair to order a new trial and give the Crown a second opportunity to present a case on which a reasonable trier of fact could convict. The Crown submitted that this appeal was an exception to the general rule because the trial judge erred in refusing to admit the similar fact evidence and that had the evidence been admitted, it, in combination with the complainant's identification evidence, would have provided a basis upon which a reasonable trier of fact, acting judicially, could have convicted.

Unlike most evidentiary rulings, a ruling on the admissibility of similar fact evidence requires a trial judge to weigh the tendered evidence to determine its admissibility. This weighing process requires both an evaluation of the probative value of the evidence and a balancing of that probative value against its prejudicial effect. In considering probative value, trial judges must decide what similarities exist between the proposed similar fact evidence and the alleged offence and the extent to which those similarities support the inference that the acts were committed by the same person. A trial judge must decide what significance should be attached to any given similarity and to the sum total of the similarities. The determination of probative value is based on the trial judge's individual impression of the evidence and is, to some degree at least, an intuitive assessment that reflects that individual judge's experience and sense of what is fair. The test for the admissibility of similar fact evidence in evitably means that in some cases different judges could come to different conclusions with respect to the admissibility of the same similar fact evidence. The fact that the admissibility of similar fact evidence turns on assessments as to the probative value of the evidence and its prejudicial effect explains the high degree of deference which appellate courts must give to trial judge's rulings on the admissibility of similar fact evidence. An appellate court should intervene only if the trial judge's ruling was unreasonable. That is, if an appellate court is satisfied that on a proper appreciation of the evidence and a proper application of the applicable test for admissibility, there is only one reasonable result, either admission or exclusion, the appellate court should intervene if the trial judge did not arrive at that result.

There was no suggestion that the trial judge misapprehended the evidence relevant to the determination of the admissibility of the similar fact evidence. Her reference to "cases of this kind" was no more than an honest acknowledgement that in cases involving the sexual abuse of children, there is a real risk of improper propensity reasoning if the Crown is allowed to adduce evidence that the accused had sexually abused a child on another occasion. The reference to "public disapproval" was an honest acknowledgement that in cases involving the sexual abuse of children there is a risk that the verdict will reflect public disapproval of the crime rather than an objective assessment of the accused's culpability for the crime. That concern is properly captured by the concept of prejudice as used in the determination of the admissibility of similar fact evidence. The trial judge did not err in considering the potential prejudice of this evidence.

The trial judge's ruling excluding the evidence did not reach the point of unreasonableness. She did not regard the slashing of tents at both campsites as a unique or distinctive feature. The fact that she was not prepared to give the similar fact evidence the probative value that other judges acting reasonably might well have given it did not constitute reversible error. Her ultimate assessment that the probative value did not clearly outweigh the prejudicial effect was within the broad range of what should be considered reasonable in the circumstances.

As the trial judge did not err in excluding the similar fact evidence, there was no reason to depart from the general rule that where a verdict is found to be unreasonable, the Court of Appeal should enter an acquittal.

Per Sharpe J.A. (dissenting): The admissibility of similar fact evidence where identity is at issue turns on a finding that the accused's involvement in the alleged similar acts or counts is unlikely to be the product of coincidence. It is the objective improbability that the accused's involvement in the alleged acts is the product of coincidence that gives the evidence its probative force. Where 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. The trial judge applied a stricter test for admissibility. She ruled that the similar fact evidence should not be admitted as it did not amount to "a unique badge". While a unique trade mark or signature will automatically render similar fact evidence admissible, a unique trade mark or signature is not required. Rather, a pooling approach is appropriate and if there are a number of significant similarities that, when taken together, establish an objective unlikelihood of coincidence, the evidence may be admitted.

Despite the high level of deference accorded to the rulings of trial judges on the admissibility of similar fact evidence, such rulings are not immune from appellate review if the trial judge erred by applying incorrect legal principles. The trial judge erred by applying the wrong legal test and the application of the correct test yielded a different result. The significant similarities, when pooled together, were sufficient to establish the objective improbability of coincidence and to show that it was more likely than not that the same person had committed the similar acts.

If admitted, the similar fact evidence, together with the identification evidence, would be capable in law of supporting a guilty verdict. Accordingly, a new trial should be ordered.

APPEAL from a conviction for sexual assault.

Cases referred to R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, 58 B.C.L.R. (3d) 18, 166 D.L.R. (4th) 296, 232 N.R. 317, [1999] 5 W.W.R. 545, 129 C.C.C. (3d) 321, 20 C.R. (5th) 1; R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, 73 Alta. L.R. (2d) 1, 107 N.R. 241, [1990] 3 W.W.R. 385, 55 C.C.C. (3d) 1, 76 C.R. (3d) 1; R. v. B. (L.) (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35, 116 C.C.C. (3d) 481, 9 C.R. (5th) 38 (C.A.); R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 184 D.L.R. (4th) 193, 252 N.R. 204, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1; R. v. C. (M.H.), 1991 CanLII 94 (SCC), [1991] 1 S.C.R. 763, 123 N.R. 63, 63 C.C.C. (3d) 385, 4 C.R. (4th) 1; R. v. Handy (2000), 2000 CanLII 5707 (ON CA), 48 O.R. (3d) 257, 145 C.C.C. (3d) 177, 32 C.R. (5th) 316 (C.A.) (sub nom. R. v. H. (J.)); R. v. Keegstra, 1995 CanLII 91 (SCC), [1996] 1 S.C.R. 458, 39 Alta. L.R. (3d) 305, 197 N.R. 26, 105 C.C.C. (3d) 19, 48 C.R. (4th) 118, [1995] 2 S.C.R. 381, 29 Alta. L.R. (3d) 305, 124 D.L.R. (4th) 289, 180 N.R. 120, 29 C.R.R. (2d) 256, 98 C.C.C. (3d) 1, 39 C.R. (4th) 205; R. v. McDonald (2000), 2000 CanLII 16871 (ON CA), 148 C.C.C. (3d) 273 (Ont. C.A.); R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 30 O.R. (3d) 419, 39 C.R.R. (2d) D-4, 110 C.C.C. (3d) 445, 2 C.R. (5th) 82 (C.A.); R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193, 38 C.R. (4th) 4 (C.A.); R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641, 117 C.C.C. (3d) 481, 14 C.R. (5th) 116 (C.A.); Yebes v. R., 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, 17 B.C.L.R. (2d) 1, 43 D.L.R. (4th) 424, 78 N.R. 351, [1987] 6 W.W.R. 97, 36 C.C.C. (3d) 417, 59 C.R. (3d) 108 (sub nom. R. v. Yebes) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 486(3), 686(1)(a)(i), (2), 753.1

John Norris, for appellant. Howard Leibovich, for respondent.

DOHERTY J.A. (SIMMONS J.A. concurring): --

I

Overview

1The appellant was convicted of sexual assault by Hansen J. of the Ontario Court of Justice. The Crown then brought a dangerous offender application. Hansen J. dismissed that application but found that the appellant was a long-term offender under s. 753.1 of the Criminal Code, R.S.C. 1985, c. C-46. She sentenced the appellant to 3 years in the penitentiary followed by ten years of community supervision.

2The appellant appeals his conviction and the Crown appeals the dismissal of the dangerous offender application. As the conviction on the sexual assault charge was a condition precedent to the bringing of the dangerous offender application, the Crown appeal becomes moot if the sexual assault conviction is quashed.

3The appellant contended that the conviction, based almost entirely on an identification made at a photographic line-up some 2 1/2 years after the assault, was unreasonable. The Crown submitted that the evidence supported the verdict. The Crown further submitted that if the verdict was unreasonable, the appropriate order would be a new trial and not an acquittal. The Crown argued that the trial judge had erred in excluding "similar fact" evidence tendered by the Crown at trial, and that had she admitted that evidence there would have been ample evidence to justify a conviction. The Crown contended that if the verdict was unreasonable it was entitled to a new trial where it could tender the improperly excluded similar fact evidence. [See Note 1 at end of document]

4At the conclusion of oral argument, the court indicated that the verdict was unreasonable and reserved judgment to consider the appropriate disposition. The Crown appeal from the refusal of the dangerous offender application was dismissed as moot.

II

The Sexual Assault Conviction

(i) The evidence

5In July 1991, [See Note 3 at end of document] the complainant, who was 12 years old, was fondled by a man who entered her tent at about 4:00 a.m. at a campground near Perth, Ontario. Identity was the only issue at trial. It was accepted that the complainant was sexually assaulted and that she was an honest witness who believed that the appellant was her attacker.

6There was no evidence capable of confirming or supporting the identification evidence given by the complainant. The appellant testified and denied that he attacked the complainant. He said that he was at a friend's house on the evening of the attack and recalled that the police visited him the next morning. The trial judge rejected the appellant's evidence as untrue, based in part on certain reply evidence called by the Crown. I see no reason to disagree with her assessment of the appellant's evidence. The reasonableness of the verdict must be approached on the basis of the evidence tendered by the Crown. The rejection of the appellant's evidence does not add weight to the Crown's case.

7The complainant testified that she went to bed about 12:30 a.m. on the night of the assault. She slept in a small pup tent with her brother. Her parents and two other siblings slept in a larger tent pitched nearby. At some point after falling asleep, the complainant "half awoke" thinking that there was an animal in her shirt. She swung her arms and made contact with someone. She realized that there was a male intruder on top of her. She felt his hands inside her shirt squeezing her breasts. She looked at the man's face for five or six seconds from a distance of about 1 1/2 feet. The complainant lifted her head slightly and bit the intruder's hand. The intruder said "bitch", jumped up and left the tent. The complainant saw his face for about another second and then started to scream. She was so afraid she was unable to open the tent. Her parents rushed to the tent and the complainant immediately told her father that there was a man in her tent. Her father searched the area but found no one.

8The assault occurred at about 4:00 a.m. It was still dark out, although there was some light in the area where the tents were pitched coming from a service centre located about 120 yards away.

9The intruder exited through a hole in the back of the pup tent. It would appear that he also entered through that hole. There was another hole ripped in the side of the pup tent. Those holes were apparently made by the intruder.

10A fingerprint was lifted from one of the tent poles on the outside of the tent and footprints were found near the tent. Neither was connected to the appellant.

11The complainant was interviewed about an hour after the assault. She described the intruder as having "greyish or whitish wavy" hair that was "combed back at the front". She also said that the intruder was wearing dark track pants. She provided no further description of her assailant.

12The complainant was shown a photo line-up containing a picture of the appellant some 28 months after the incident. She acknowledged that in the almost 2 1/2 years that passed between the incident and her viewing of the photo line-up, there were occasions on which she could no longer recall what the intruder looked like. As she put it:

I remembered the face of the person I saw. I didn't totally forget the face I just couldn't bring it to mind. I couldn't sit there and think and remember exactly what he looked like, I couldn't bring it to my mind. I basically thought I forgot what he looked like.

13Before viewing the photo line-up, the complainant's mother cautioned her against identifying anyone unless she was sure of her identification. The officer who showed the complainant the photo line-up stressed to her that she should not feel any obligation to select a photograph and that her attacker may or may not be in the photo line-up. The complainant appreciated the seriousness of what she was being asked to do when she was shown the photo line-up. She did not want to identify the wrong person.

14The photo line-up contained 12 pictures. It was a fair line-up in the sense that the appellant's photograph (#8) did not stand out in any way and the individuals depicted in the other photographs were similar in appearance to the appellant.

15The officer who showed the complainant the photo line-up testified that the appellant looked at the photographs for some time, pointed to number 8 (the appellant) and said "I think it's him". She then said:

That's the one. That just popped into my mind when I looked at the picture. It's the eyes.

16The officer then asked her if there was anything else about the picture that led her to believe that it was her attacker and she said "the hair, the way it's back so far".

17A few minutes later, the complainant asked to see the pictures again. She explained in her evidence that she wanted to see the photographs again because she was concerned that she had not looked closely enough at the photographs other than number 8. She wanted to be sure that she had picked out the right one. The officer would not allow her to look at the line- up again. He offered no explanation for the refusal.

18In her testimony at trial, the complainant gave a somewhat more detailed description of her intruder. She said that he was a white male in his early 50s. She described his hair as short, combed back at the front and "all grey, basically white". She could not remember anything about the intruder's face except his eyes. She described his eyes as "really bright blue and they just stuck right out". She also identified the appellant in the courtroom.

(ii) The reasonableness of the verdict

19A verdict will be said to be unreasonable pursuant to s. 686(1)(a)(i) of the Criminal Code if an appellate court is satisfied that the verdict is one that a properly instructed trier of fact, acting judicially, could not have rendered: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, 36 C.C.C. (3d) 417 at p. 430; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 143 C.C.C. (3d) 1 at pp. 20-25. As Arbour J. observed in R. v. Biniaris, supra, the appellate court must look at the evidence through "the lens of judicial experience" which gives the appellate court an appreciation of the kinds of evidence, the types of witnesses, and other features of the trial process which have historically been shown to lead triers of fact outside the realm of reasonableness: R. v. Biniaris, supra, at pp. 21-24 C.C.C. Judicial experience has taught that convictions that rest on honest and apparently reliable eyewitness evidence are sometimes wrong and demand close appel late scrutiny: e.g. see R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 30 O.R. (3d) 419, 110 C.C.C. (3d) 445 at p. 452 (C.A.); R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641, 117 C.C.C. (3d) 481 at pp. 515-16 (C.A.).

20A finding that a verdict is unreasonable does not depend on a demonstration of error in the course of the trial proceedings. An error-free trial may still result in an unreasonable verdict: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 at p. 220 (C.A.). Practically speaking, however, an appellant will have a difficult time demonstrating that a verdict reached by a judge, sitting without a jury, is unreasonable unless the appellant can show either an absence of reasoning, or an error in the reasoning process that led to the conviction. In drawing the connection between a review of a trial judge's reasons and the reasonableness of a verdict, in R. v. Biniaris, supra, at p. 406 S.C.R., p. 21 C.C.C., Arbour J. said:

[T]he reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, and justify the reversal. . . .

21A review of the trial judge's reasons satisfies me that she misapprehended a significant feature in the evidence and that her misapprehension figured prominently in her decision to convict the appellant. The trial judge referred to the complainant as having given a "detailed description of her attacker in her statement to the police". The complainant's statement to the police taken about an hour after the incident referred only to the attacker's hair and his pants. It was not a "detailed description".

22The trial judge described the statement made by the complainant when she identified the appellant's photograph in the following terms:

She [the complainant] again referred to his eyes and hair as the most distinguishing features . . .

(Emphasis added)

23The complainant had mentioned her attacker's hair in her initial statement to the police, but she had not mentioned his eyes. She made no mention of his eyes until after she saw the photograph.

24The same misapprehension of the evidence surfaced when the trial judge compared the evidence given by the complainant to her descriptions given to the police. She said:

Similar descriptions as to clear blue eyes and wavy grey, almost white hair, that was combed up leaving the brow visible was given by the young witness to the police and on the witness stand, and I find that they match the appearance of the accused.

(Emphasis added)

25As the reasons reveal, the trial judge mistakenly believed that the complainant had referred to her attacker's "clear blue eyes" and the distinctiveness of those eyes in her initial statement to the police. Had she given that information to the police, it would have significantly enhanced the reliability of her identification. A perusal of the photo line-up reveals that the appellant's eyes are probably his most distinguishing feature. Had the complainant referred to this feature before seeing the photograph, one could place considerably more reliance on her identification. Her reference to the eyes has much less probative value when it was made only after she saw a photograph in which the eyes are a prominent feature.

26If, as the trial judge erroneously thought, the complainant had given a "detailed description" of her attacker to the police on the night of the attack, and if, as the trial judge mistakenly thought, that description had included the description of the eyes first provided some 2 1/2 years later, then the verdict might well be sustainable. On the evidence as actually adduced, however, I am satisfied that the verdict is unreasonable.

27The intruder was a stranger to the 12-year-old complainant. She had only five or six seconds to observe him and the conditions under which the observations were made were far from ideal. It was dark, the complainant had been fast asleep immediately before the attack, and she was understandably very frightened when she realized what was happening. The complainant's description of the intruder provided to the police on the night of the attack referred only to his hair and his pants and provided very little which could assist in identifying the intruder and distinguishing him from literally thousands of other people.

28The circumstances in which the assault occurred and the absence of much detail in the complainant's initial description required that the Crown place great weight on the complainant's identification of the appellant in the photo line-up. The police followed the proper procedure in conducting that line-up and it was a fair line-up. For some reason, however, even though the appellant was a suspect within days of the incident, the line-up was not conducted for almost 2 1/2 years. The long time span between the incident and the line-up severely undermines the value of the identification made in that line- up. I do not think that much reliance can be placed on a witness's honest assertion that a picture viewed some 2 1/2 years after a brief encounter in a darkened tent with a stranger, is a picture of that stranger. The complainant understood the dangers inherent in trying to identify someone so long after the incident. Unfortunately, when she asked to look at the line-up a second time, the officer refused t o allow her to do so.

29The case for the Crown rests almost entirely on the identification made at the photo line-up. For the reasons outlined above, I do not think that the identification is sufficiently trustworthy to support a conviction. On a proper understanding of the evidence, no reasonable trier of fact, acting judicially, would have convicted the appellant.

(iii) The appropriate order

30Section 686(2) of the Criminal Code provides that where the court allows an appeal from conviction it may direct an acquittal or order a new trial. Usually, if the Court of Appeal allows a conviction appeal on the ground that the verdict is unreasonable it will enter an acquittal. An acquittal is the appropriate order because it would be unfair to order a new trial and give the Crown a second opportunity to present a case on which a reasonable trier of fact could convict. The Crown submits that this appeal is an exception to that general rule.

31At trial, the Crown tendered evidence of a sexual assault committed by the appellant some six years before this incident. The Crown claimed that the circumstances surrounding the 1985 assault and the assault charged in this case were sufficiently similar to warrant the admissibility of the evidence of the prior assault as circumstantial evidence identifying the appellant as the perpetrator of this assault. The trial judge refused to admit that evidence. For ease of reference, I will refer to the evidence of the 1985 incident as the similar fact evidence.

32I am satisfied that if that evidence should have been received, then that evidence, in combination with the complainant's identification evidence, would have provided a basis upon which a reasonable trier of fact, acting judicially, could have convicted.

33Counsel for the appellant accepts that the Crown can raise the correctness of the trial judge's ruling on the admissibility of the similar fact evidence to support the argument that there should be a new trial and not an acquittal. Counsel also does not suggest that if the evidence should have been admitted that a new trial would not be the proper order. Counsel does contend, however, that the trial judge made no legal error in excluding the evidence. He submits that this court should not interfere with that ruling and should enter an acquittal.

34I agree with the approach taken by both counsel. On an appeal from conviction, the Crown can raise errors in law made at trial which, according to the Crown, enured to the benefit of the appellant. These errors can be raised either to resist the quashing of the conviction or, if the conviction is quashed, in support of the Crown's position as to the appropriate remedy: [See Note 3 at end of document] see R. v. Keegstra, 1995 CanLII 91 (SCC), [1995] 2 S.C.R. 381, 98 C.C.C. (3d) 1 at p. 14.

35At the outset of the trial, Crown counsel alerted the trial judge to the nature of the Crown's case and advised her that identity would be the sole issue at trial. He then summarized the evidence he proposed to call concerning the prior sexual assault:

The similar fact evidence is something from June of 1985. This is an offence that Mr. Harvey pled guilty to. In June of 1985 the complainant or the victim in that case was a young lady named [M.P.]. At the time of the offence against her she was 11 years old. She was camping with a group of Girl Guides and Pathfinders as well as adult supervisors at Beavermeade Park, which is in the area of Peterborough. This group who went camping were in various tents with the adults being in large tents and a group of the Girl Guides were in five or six pup tents.

She would give evidence that she was in her tent, a pup tent, alone. In the early morning hours the accused person Mr. Harvey unzipped her tent. He walked in the tent and he told this girl, [M.P.] that he was a gardener for the campsite or for the park. He then undid her pyjamas. He then fondled her breasts and her vagina. He attempted to make her touch his penis, she refused by pulling her hand back and the accused person then left.

She would say that she then left her tent, went to the tent of another Girl Guide, told this other Girl Guide about what happened. The next morning the parents or the counselors, the adult counselors were told about what happened. There was an examination done of the tents in the area and it was found that the tent that [M.P.] was in was not cut but that all of the -- I'm sorry. The tent that [M.P.] was in was not cut, it was a pup tent. The tent she went into after the accused assaulted her was also a pup tent. It was not cut. There were also adult tents there, full size tents. They were not cut but all of the rest of the pup tents which she would say was around five or so pup tents were all cut and that they had a cut in them in an "L" shape with a flap.

36There were several similarities between the 1985 incident and this incident. Both involved sexual attacks on young girls while they were sleeping in tents at campgrounds. Both occurred in the dead of night. While they did not occur at the same campsite, both were located in the eastern part of Ontario. Both victims were fondled by their attacker, although the physical activity in 1985 went beyond that which occurred in this case. The victims were both in tents in which there were no adults and in both cases the supervising adults were in nearby tents. Finally, in both incidents, one or more tents at the scene of the assaults were slashed in an "L"-shaped fashion. In the 1985 incident, the victim's tent was not slashed, but some of the other tents were slashed. In this incident, the victim's tent was slashed in two places and the other tent at the campsite was not slashed.

37The trial judge had the benefit of full and focused argument. The Crown argued that the similarities between the two incidents were sufficient to make it unlikely that the offences were committed by two different people. Counsel for the appellant argued that while there were similarities, those similarities were not in relation to unique or distinct matters. He also referred to several differences between the two incidents and the long period of time between the two events (6 years). Both counsel put the issue to the trial judge as one involving a consideration of the potential probative value of the evidence on the issue of identity weighed against the potential prejudice to the accused inherent in evidence of prior misconduct. They acknowledged the potential prejudice of evidence that the appellant had previously sexually molested a young girl. The real dispute centred on the potential probative value of the evidence.

38The trial judge ultimately determined that she had "doubts" as to the probative value of the evidence which she considered to be potentially "highly prejudicial". She excluded the evidence saying in part:

On a superficial level the cutting of a pup tent may be viewed as a badge, a unique, as a modus of operating for an offender who assaults pubescent girls who are in tents. However, as defence counsel suggested sexual attacks in camp parks are not that uncommon and I have to agree with that.

One may also deduce that cutting a pup tent is not that different from say, in another type of offence, smashing a window or putting a boot to a door, and I do not consider the cutting of an "L" shape flap a unique badge.

This leaves the sexual assaults themselves and their location, which are not entirely similar, that unusual.

Considering the highly prejudicial effect of similar evidence in cases of this kind and in offences where public disapproval is extremely high. And considering the doubts I have expressed as to its actual probative value as similar fact evidence, I have concluded that the balance tilts in favour of not admitting the evidence tendered by the Crown. And I therefore hold it is not admissible.

(Emphasis added)

39Similar fact evidence is prima facie inadmissible, even though legally relevant. That evidence will, however, be admitted if its potential probative value to prove a fact in issue is sufficiently high to clearly outweigh the potential prejudice flowing from the admission of evidence of discreditable conduct: R. v. C. (M.H.), 1991 CanLII 94 (SCC), [1991] 1 S.C.R. 763 at pp. 771-72, 63 C.C.C. (3d) 385; R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, 55 C.C.C. (3d) 1 at p. 21; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, 129 C.C.C. (3d) 321 at p. 345.

40Where similar fact evidence is tendered on the issue of identity, the Crown asks the trier of fact to draw two inferences. First, that the similar fact evidence and the crime charged were committed by the same person and, second, that the accused is that person. The potential probative value of the similar fact evidence will depend mainly on the extent to which it lends strength to the first of those two inferences. [See Note 4 at end of document] The strength of the inference that the similar fact conduct and the alleged offence were committed by the same person will depend on the similarities between the two incidents. The more similarities there are and the more distinct those similarities, the stronger will be the inference that the acts were committed by the same person. At some point the inference becomes sufficiently strong to clearly outweigh the prejudice inherent in admitting evidence of other bad acts done by the accused.

41In R. v. Arp, supra, Cory J. considered the admissibility of similar fact evidence to prove identity. He summarized his analysis at p. 369 S.C.R., p. 345 C.C.C.:

(1) Generally where similar fact evidence is adduced to prove identity a high degree of similarity between the acts is required in order to ensure that the similar fact evidence has the requisite probative value of outweighing its prejudicial effect to be admissible. The similarity between the acts may consist of a unique trademark or signature on a series of significant similarities.

(2) In assessing the similarity of the acts, the trial judge should only consider the manner in which the acts were committed and not the evidence as to the accused's involvement in each act.

(3) There may well be exceptions but as 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.

(4) The jury will then be able to consider all the evidence related to the alleged similar acts in determining the accused's guilt for any one act.

(Emphasis added)

42Cory J. also observed in R. v. Arp, supra, at p. 350 C.C.C., that, unlike most evidentiary rulings, a ruling on the admissibility of similar fact evidence requires a trial judge to weigh the tendered evidence to determine its admissibility. This weighing process requires both an evaluation of the probative value of the evidence and a balancing of that probative value against the prejudicial effect of the evidence. In considering probative value, trial judges must decide what similarities exist between the similar fact evidence and the alleged offence and the extent to which those similarities support the inference that the acts were committed by the same person. In making this evaluation, individual trial judges will decide what significance should be attached to any given similarity and to the sum total of the similarities. The determination of probative value is based on the trial judge's individual impression of the evidence and is, to some degree at least, an intuitive assessmen t that reflects that individual judge's experience and sense of what is fair. The test for the admissibility of similar fact evidence inevitably means that in some cases different judges could come to different conclusions with respect to the admissibility of the same similar fact evidence.

43The fact that the admissibility of similar fact evidence turns on assessments as to the probative value of the evidence and its prejudicial effect explains the high degree of deference which appellate courts must give to trial judges' rulings on the admissibility of similar fact evidence. In R. v. B. (C.R.), supra, at p. 733 S.C.R., p. 23 C.C.C., McLachlin J. said:

A third feature of this Court's treatment of the similar fact rule since Boardman [[1975] A.C. 421 (H.L.)] is the tendency to accord a high degree of respect to the decision of the trial judge, who is charged with the delicate process of balancing the probative value of the evidence against its prejudicial effect. . . . This deference to the trial judge may in part be seen as a function of the broader, more discretionary nature of the modern rule at the stage where the probative value of the evidence must be weighed against its prejudicial effect. As a consequence of the rejection of the category approach, the admissibility of similar fact evidence since Boardman is a matter which effectively involves a certain amount of discretion. . . . Generally, where the law accords a large degree of discretion to a trial judge, courts of appeal are reluctant to interfere with the exercise of that discretion in the absence of demonstrated error of law or jurisdiction.

(Emphasis added)

44The strongly deferential approach to trial judges' decisions as to the admissibility of similar fact evidence continues to play a key role in the jurisprudence: R. v. Arp, supra, at p. 340 C.C.C.; R. v. B. (L.) (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35, 116 C.C.C. (3d) 481 at pp. 505-06 (C.A.). The Crown's submission that the trial judge erred in excluding the similar fact evidence must be approached with the deference described in the authorities referred to above.

45There is no suggestion that the trial judge misapprehended the evidence relevant to the determination of the admissibility of the similar fact evidence. Counsel does argue that the trial judge erred in law by misapplying the concept of prejudice in determining the admissibility of the similar fact evidence. Counsel contends that the trial judge erred in determining prejudice "by looking at the nature of the offence charged as opposed to the nature of the proposed evidence".

46The trial judge's brief reference to prejudice is referred to above and, for convenience, I will repeat it here:

Considering the highly prejudicial effect of similar fact evidence in cases of this kind and in offences where public disapproval is extremely high.

47I do not think that this passage signals any misunderstanding of the prejudice to be considered in determining the admissibility of the similar fact evidence. Crown counsel's argument that the trial judge focused on the prejudice inherent in the charge of sexual assault rather than the prejudice created by the similar fact evidence, does not make sense in this case. The conduct alleged in the charge and the conduct described in the similar fact evidence both refer to sexual assaults on young girls. The distinction which the Crown claims led to the trial judge's misapprehension of the concept of prejudice simply does not arise in this case.

48The trial judge's reference to "cases of this kind" seems to me to be no more than an honest acknowledgement that in cases involving the sexual abuse of children, there is a real risk of improper propensity reasoning if the Crown is allowed to adduce evidence that the accused had sexually abused a child on another occasion. The reference to "public disapproval" is again an honest acknowledgement that in cases involving the sexual abuse of children there is a risk that the verdict will reflect public disapproval of the crime rather than an objective assessment of the accused's culpability for the crime. That concern is properly captured by the concept of prejudice as used in the determination of the admissibility of similar fact evidence. I find no error in the trial judge's consideration of the potential prejudice of this evidence.

49Crown counsel also argued that even if the trial judge did not misapprehend the evidence and did apply the correct legal test, her ruling is so clearly wrong that this court should interfere. Counsel contends that the similarities between the similar fact evidence and this alleged offence are so many and so distinctive that a proper application of the test for admissibility could result only in a ruling that the evidence was admissible. I take this to be a submission that the trial judge's ruling is unreasonable.

50In advancing this submission, Crown counsel must contend with the deference doctrine. I think that doctrine can accommodate Crown counsel's argument. If an appellate court is satisfied that on a proper appreciation of the evidence and a proper application of the applicable test for admissibility there is only one reasonable result, either admission or exclusion, the appellate court should intervene if the trial judge did not arrive at that result. If, however, the case is one in which the evidence is such that different trial judges acting reasonably could come to different conclusions as to the admissibility of the evidence depending on their assessments of probative value and prejudicial effect, then the appellate court must defer to the decision of the trial court.

51I am not prepared to hold that the trial judge's ruling excluding the evidence reaches the point of unreasonableness. The similarities relied on in this court were referred to by the trial judge in her ruling. She was not as impressed by the combination of these similarities as the Crown thinks she should have been. Perhaps the key similarity is the slashing of the tents. The Crown referred to the slashing of the tents as the intruder's "badge or calling card". The trial judge considered that evidence, but described it as more akin to evidence of a broken window or kicked in door in a break and enter case. In this regard, she does not appear to have accepted the contention that the way the tents were ripped was somehow distinctive. She simply did not accept that the slashing of tents at both campsites was a unique or distinctive feature. I think this is exactly the kind of assessment which must be left to trial judges. Certainly, this court is in no better position than the trial judge to assess the significance of the evidence concerning the slashing of the tents.

52It must be stressed that the trial judge was not blind to the similarities between the two incidents and the support those similarities afforded for the Crown's claim that the two assaults were committed by the same person. She was not, however, so impressed by those similarities as to be satisfied that they gave the similar fact evidence sufficient probative value to clearly outweigh the significant prejudicial effect flowing from admission of the evidence. The six-year gap between the incidents was also germane to the potential probative force of the evidence.

53The fact that this trial judge was not prepared to give the similar fact evidence the probative value that other trial judges acting reasonably might well have given it does not constitute reversible error. I think the trial judge's ultimate assessment that the probative value did not clearly outweigh the prejudicial effect was within the broad range of what should be considered reasonable in the circumstances. I would defer to her decision.

54As the Crown has not convinced me that the trial judge erred in excluding the similar fact evidence, there is no reason to depart from the general rule that where a verdict is found to be unreasonable, this court should enter an acquittal.

III

55I would allow the appeal, quash the conviction and enter an acquittal on the charge of sexual assault.

56SHARPE J.A. (dissenting): -- I agree with Doherty J.A. that in view of the nature of the identification evidence, the conviction cannot be supported and must be set aside. However, as I take a different view as to the trial judge's ruling on the admissibility of the similar fact evidence, I respectfully disagree that the appropriate order is to enter an acquittal. In my view, the ruling of the trial judge refusing to admit the similar fact evidence reveals reversible error. If admitted, the similar fact evidence, together with the identification evidence, would be capable in law of supporting a guilty verdict, and accordingly, rather than enter an acquittal, I would direct a new trial.

57As my colleague has fully set out the relevant facts and legal principles, I will proceed directly to state my reasons for disagreement on the narrow point of the similar fact evidence ruling.

58In my view, there are grounds for appellate review in the circumstances of the present case. I reach that conclusion for the following reasons.

59When she made her ruling, the trial judge did not have the benefit of the Supreme Court of Canada's decision in R. v. Arp, supra, the leading Canadian authority on the use of similar fact evidence where identity is at issue. In Arp, at p. 363 S.C.R., p. 340 C.C.C., Cory J. distinguished between similar fact evidence that merely shows disposition, i.e., that the accused "is the type of person" to commit the offence, and similar fact evidence that shows that "the accused is the very person who committed the crime" (my emphasis). Similar fact evidence in the former category is inadmissible; although relevant, the prejudicial effect of disposition evidence outweighs its probative value. Similar fact evidence will fall into the second category and may be admitted if, as Cory J. stated, "the high degree of similarity between the acts renders the likelihood of coincidence objectively improbable."

60Cory J. at p. 365 S.C.R., p. 342 C.C.C. elaborated the test to be applied, describing "a principled approach" in which the admissibility turns "on the finding that the accused's involvement in the alleged similar acts or counts is unlikely to be the product of coincidence". It is the "objective improbability that the accused's involvement in the alleged acts is the product of coincidence" that gives the evidence its probative force. Cory J. noted that where 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." Of particular importance to the present appeal is the following passage which makes it clear that while a unique trade mark or badge is sufficient to warrant admission of the similar fact evidence, it is not a necessary condition for admissibility:

. . . a unique trade mark 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 admission of the evidence.

(Emphasis added)

61Cory J. went on to state at p. 381 S.C.R., pp. 353-54 C.C.C. that "the correct approach to a consideration of similar fact evidence by a jury is the 'cumulative' or 'pooling' approach" in which the jury should be instructed as follows:

[O]nce they have concluded that there is sufficient likelihood that the same person committed the alleged similar acts, they may consider all the evidence relating to the similar acts in considering whether the accused is guilty of the act in question.

62As I read her ruling, the trial judge applied a stricter test for admissibility than that set out by Cory J. She ruled that the similar act evidence in question should not be admitted as it did not amount to "a unique badge". As the passages I have quoted show, Arp holds that while a unique trade mark or signature will automatically render the evidence admissible, a unique trade mark or signature is not required. Rather, a "pooling" approach is appropriate and if there are a number of significant similarities that when taken together establish an objective unlikelihood of coincidence, the evidence may be admitted.

63While I accept that a high level of deference must be accorded to the rulings of trial judges on the admissibility of similar fact evidence, such rulings are not immune from appellate review if the trial judge erred by applying incorrect legal principles: see, e.g. R. v. Handy (2000), 2000 CanLII 5707 (ON CA), 48 O.R. (3d) 257, 145 C.C.C. (3d) 177 (C.A.); R. v. McDonald (2000), 2000 CanLII 16871 (ON CA), 148 C.C.C. (3d) 273 (Ont. C.A.). I would also note certain features of the nature and circumstances of the ruling at issue here that seem pertinent to the issue of deference. The ruling at issue was made at the very outset of the trial, before any evidence had been heard. Crown counsel outlined the nature of the proposed similar fact evidence and gave a very brief sketch of other evidence he proposed to call. Both counsel made their submissions and the trial judge gave her brief oral ruling immediately thereafter. The ruling was not influenced by any particular advantage the trial judge had in appreciating the impact the evidence would have on the trial. Nor did the ruling turn on any advantage the trial judge had in appreciating the balance between prejudicial effect and probative value. In these circumstances, the case for appellate deference is less compelling than where the ruling is made during the course of a trial in circumstances where the trial judge uniquely well-placed to appreciate the significance and impact it is likely to have.

64The list of significant similarities between the similar fact evidence and the incident in question is as follows:

(1) both victims were female;

(2) both victims were of similar age (11 and 12);

(3) both attacks took place in the early morning hours;

(4) both attacks took place on campgrounds in Eastern Ontario;

(5) both attacks took place while the victims were in pup tents;

(6) both attacks took place while the pup tents were situated near other adult tents;

(7) both victims were fondled by the attacker; and

(8) in both instances, the attacker left a badge or calling card, the "L" shaped slashing of a tent.

65As the trial judge erred in law by failing to consider these similarities in the manner required by the Arp test, it is open to this court to review her ruling. The trial judge dismissed the similarities of the time, place and type of assault by agreeing with defence counsel's suggestion that "sexual attacks in camp parks are not that uncommon." Given this list of similarities, the similar act evidence was significantly more distinctive than a "routine" sexual assault in a park. The trial judge also dismissed the "L" shaped slashes in the tents as being the equivalent of "smashing a window or putting a boot to a door". I cannot accept this as a reasonable conclusion on the evidence. Smashing a window or kicking in a door are common methods of gaining access to a building for illicit purposes. The same cannot be said of slashing tents in a particular and distinctive manner for in conjunction with sexual assaults on pubescent girls in the middle of the night. Indeed, it seems to me that the manner of slashing the tents could well amount to "a unique badge", although I need not go that far. Even if it did not, when combined with the other similarities as to place and nature of the assaults, the evidence did, in my view, satisfy the Arp test and establish the objective unlikelihood of coincidence.

66I conclude, accordingly, that the trial judge erred by applying the wrong legal test, and that the application of the correct test yields a different result. It is my view that the significant similarities, when pooled together, were sufficient to establish the objective improbability of coincidence and to show that it was more likely than not that the same person had committed the similar acts.

67Accordingly, I would also allow the appeal and set aside the verdict of guilty, but rather than enter a verdict of acquittal, I would direct a new trial.

Appeal allowed.

Notes

Note 1: In his factum, Crown counsel argued that we could affirm the conviction if we were satisfied that the "similar fact" evidence should have been admitted. In oral argument, he agreed that as that evidence was not tested at trial a new trial would be necessary.

Note 2: The appellant was not charged until late 1993 after he was identified by the complainant. The trial concluded in December 1995. The dangerous offender proceedings did not end until late 1999, and the trial judge's reasons were available in March 2000. The delay in those proceedings was caused in part by the appellant who absconded between conviction and those proceedings.

Note 3: I need not consider whether the Crown as respondent could raise errors other than errors of law to support a verdict challenged on appeal.

Note 4: The need for evidence to connect the accused to the similar fact conduct is not a problem here. He pleaded guilty to the 1985 assault.