DATE: 20040331

DOCKET: C39917

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) – and – MARKHAN SINGH MULTANI (Respondent)

BEFORE:

GOUDGE, MacPHERSON AND CRONK JJ.A.

COUNSEL:

Christine Bartlett-Hughes

for the appellant

Dirk Derstine

for the respondent

HEARD:

March 30, 2004

On appeal from the acquittal by Justice Anne Molloy of the Superior Court of Justice dated April 1, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] R. v. Handy makes clear that the general policy presumption of the law is that similar fact evidence ought, in general, to form no part of the case which the accused is called on to answer.

[2] Against this backdrop the trial judge delivered detailed reasons for excluding the two episodes tendered by the Crown. She carefully weighed the probative value of this evidence against its prejudicial effect. She did not require that the probative value rise to the level required in an identity case.

[3] As R. v. Harvey makes clear, her assessment of the degree of probative effect and her balancing of that against prejudicial effect are entitled to great deference. In our view her assessment is not unreasonable.

[4] The appeal must be dismissed.