WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Toronto

Date: 2013-06-19

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Ricardo Morrison

Before: Justice Chapin

Heard on: October 22, 23, 25; November 15, 16, 19, 20, 21, 22, 26, 27, 28; December 6, 7, 10, 14, 18, 2012; February 20, 27; April 4, 11; and May 29, 31, 2013

Ruling on Similar Act Application

Counsel:

David Boulet and Rebecca Law for the Crown

Deborah Bloomberg and Robert Warren for the accused Ricardo Morrison

CHAPIN J.:

Introduction

1This is a ruling on an application made by the Crown for an order allowing the evidence of the individual charges before the Court to be considered as similar act evidence in relation to each other on the question of identification.

2Mr. Morrison is charged with two counts of assault; seven counts of assault causing bodily harm and one count of second-degree murder. These offences occurred in the Parkdale area of Toronto from December 2009 to April 5, 2011 and gained considerable media attention as the victims were vulnerable members of society.

3On May 31, 2013 I granted the Crown's similar act application and indicated that my reasons would follow. These are my reasons.

The Evidence

4I do not propose to summarize every piece of evidence adduced at this preliminary inquiry. Rather, I will highlight the evidence relevant to this application.

The First Attacks

December 27th, 2009 and January 17th, 2010 — Victim Hennessy Markow

5By way of background Mr. Hennessy Markow lived in the same rooming house as the accused and they shared a kitchen and bathroom. There were some minor conflicts between the two men when the accused became upset that Mr. Markow had put his plates in a cupboard and used a garbage can that Mr. Morrison had considered to be his.

6On Dec. 27, 2009 Mr. Markow left his apartment located at 26 Lansdowne Avenue at 11:30 a.m. to buy street drugs. As he was walking he heard a noise behind him and saw a man riding a bike wearing a black jacket and hat with ear flaps. The man pulled down a mask with one hand. Mr. Markow described the mask as being square and black and it covered everything except the person's eyes.

7Mr. Markow continued to walk then heard the bicycle coming onto sidewalk and moved to the left to give the man on the bicycle room to pass; however, the man hit Mr. Markow in the back of his head. He fell to the ground and was kicked in the face 4 to 5 times. The attack went on for a few seconds. There were no words spoken during the attack and nothing was stolen from him.

8Mr. Markow saw his attacker get onto a black bike after attack - prior to assault he didn't see colour of the bicycle as it was obscured by a vehicle. In terms of a description Mr. Markow saw that the man was wearing white running shoes.

9He didn't see the attacker's pants saw that he was wearing white running shoes. He recalled that his attacker was wearing gloves but could not recall what colour they were. Some construction workers came over and asked if he was okay and asked if the attacker had stolen his bike. Mr. Markow told them he was alright.

10As a result of the attack Mr. Markow had a black eye and the bone around his left eye socket was chipped. Four or five nights after the attack the accused asked him what happened and Mr. Markow told him he was jumped from behind and Morrison said "you need to be careful, people are dangerous down here."

The Second Attack — January 17, 2010

11On January 20, 2010 Mr. Markow went out to get crack cocaine at approximately 12:30 a.m. When he left the boarding house he noticed that Mr. Morrison was on the porch and Mr. Markow said hi to him.

12Mr. Markow walks towards an alley, but the lighting was good. It was snowing heavily at the time and while he was in the alley he heard tires in the snow and turned around and saw Mr. Morrison on a bicycle. He was able to recognize him before Mr. Morrison pulled down the mask. Mr. Markow noted that it was the same mask that the attacker was wearing during the previous attack and testified that he recognized him as the assailant in the first attack.

13Mr. Markow looked around to see if there was anything he could use as a weapon to protect himself. Mr. Morrison got off the bicycle he was riding and ran towards Mr. Markow and punched him in the eye with his right arm and tried to punch Mr. Markow with his left hand but Mr. Markow was able to block it.

14No words were spoken during the altercation but afterwards Mr. Markow yelled out "is that all you got" and Mr. Morrison responded by saying "fuck you". Mr. Markow said that he recognized the voice to be that of Mr. Morrison. Nothing was stolen from Mr. Markow and he sustained a cut under his left eye as a result of the altercation.

15Mr. Markow followed the bike tracks back to their residence and called the landlord and told him about the attack. The landlord said he would take care of it and would prefer if Markow didn't speak to police.

16Mr. Markow decided not to report the attacks to the police. However, much later, when he heard the news at a drop in centre that others were being attacked in a similar way and that an old man had died he went to the police. The two things that struck Mr. Markow were that (1) that the attacks were in Parkdale and (2) that the person was wearing a mask. Mr. Markow spoke to the police in March 2011 and they show him a photograph of Mr. Morrison that identified as being his attacker.

17Mr. Markow also identified Mr. Morrison in court and said that his hairstyle in court was the same as it had been at the time of the attacks. Mr. Morrison's hair was shaved at the sides with a flat top.

18Mr. Markow admitted that he was a regular user of crack cocaine and admitted that his memory would be affected by his drug use but also said that he recalled these attacks. He also said the day he was testifying he had not used illegal drugs for 8 months.

The Attack on Ms. Tammy Garrett — January 4, 2011

19Approximately one year later Ms. Tammy Garrett, another co-resident of Mr. Morrison, although now at a different rooming house at 17 Maynard Avenue, was attacked on January 7, 2011. On that day Ms. Garrett left her residence at approximately 8:00 a.m. to go to the Ontario Disability Support Program office to pick up her cheque. While she was walking on Leopold Street someone came up behind her and attacked her.

20Shortly after she found herself on the ground and felt someone punching her in the face. She didn't see who it was that came up behind her, assumed male because she didn't think a female would do that.

21After the attack a taxi driver came to her aid and the police were called. Ms. Garrett was taken to the hospital where she was treated for fractures to her face that took approximately 6 months to heal. She was not able to identify her attacker. Nothing was stolen from her and no words were spoken during the attack.

The Attack on Mr. Edward Allison — January 9, 2011

22Mr. Allison also lived at 17 Maynard Avenue in 2011. His room was on the same floor as Mr. Morrison's. They were not friends and prior to the attack there were some acrimonious incidents. Mr. Allison said that there were three times when someone was yelling at him through the wall when his television had been quite loud and he felt that it was Mr. Morrison, who lived in the next room. Mr. Allison called the police after the third incident of yelling, they attended and had a discussion with Morrison and then left. He told police he didn't want charges to be laid.

23Mr. Morrison not was not friendly towards Mr. Allison and when Mr. Allison said hello to him Mr. Morrison would not respond. Approximately one or two weeks prior to the attack Mr. Allison described an incident when he was coming out of a bathroom in the rooming house. As Mr. Allison came out another gentleman was waiting to go in. Mr. Allison was holding the bathroom door open for this man when Mr. Morrison came from the other side of the door and accused Mr. Allison of blocking the door and then spit on him.

24On January 9, 2011 Mr. Allison left 17 Maynard Avenue at approximately noon. He was going to the recreation centre and was walking along Leopold Street. It was a cold, sunny winter day. Mr. Allison was still fairly close to his home when he was attacked from behind. He felt a bang in the back of his head and fell to the ground. He wasn't sure if it was a person or a bicycle that had knocked him down.

25When Mr. Allison landed on the ground he was on his back and a man had him pinned with his knee on his chest. Mr. Allison couldn't breathe which made him keep his eyes closed and he thought that he might be blacking out. The attacker punched Mr. Allison in the face about 5 times. Mr. Allison described the force of the punches as "full on" at first and said that they got lighter as the punches continued. The attacker used his fists and Mr. Allison thought that the attacker must have been wearing a ring as he tasted metal during the attack.

26Mr. Allison tried to open his eyes near the end of the attack, after he had been punched 5 times and was just about to open them when his attacker froze and got up and left suddenly. Mr. Allison thought that the attack had lasted anywhere between two to five minutes. Although Mr. Allison did not recall being kicked another witness, Ms. Faustina Murray testified that she observed the attacker kicking Mr. Allison as well as punching him.

27Immediately after the attack Mr. Allison jumped to his feet and caught his breath. Mr. Allison turned around and looked towards Jameson Avenue from Leopold Street and saw a guy taking off on his bicycle and was sure that the person on the bicycle was the person who had assaulted him.

28Mr. Allison testified that there was no warning that he was going to be attacked and said that it happened very quickly. He didn't hear anything before he was initially struck and had done nothing to provoke the attack. During the attack there were no words exchanged. Mr. Allison didn't see any weapons and nothing was stolen from him.

29Mr. Allison described his attacker as a male aged 30 to 40 wearing dark clothing with something covering his face. He was not able to determine the skin colour of the assailant but thought that he saw light brown hair at the back of his head. Mr. Allison estimated that his attacker was approximately 5'10", 5'11" or 6 feet at most and described the body build as slim.

30In cross-examination he agreed that initially he told the police that he thought the attacker was a male, white because of the person's body language as he was riding away on the bicycle.

31Mr. Allison described the bicycle that the attacker was riding as dark in colour and possibly a 3 speed, 10 speed or mountain bike. As a result of the attack Mr. Allison suffered bruising and cuts on his face.

The Attack on Patrick Zack — February 25, 2011

32Mr. Zack lived at 18 Maynard Avenue in a group home which is a subsidized assisted living residence for people with mental disabilities. This residence directly across the street from where Mr. Morrison resided. Mr. Zack had passed away prior to the preliminary inquiry. As a result the evidence of the attack on Mr. Zack was introduced through his sister, Ms. Betty Traynor, Ms. Olive Gabbidon, who was the manager of the residence, and Officer Lorne Foster of the Toronto Police Service. For the purposes of the preliminary inquiry the defence conceded that the statements were both necessary and reliable.

33Ms. Traynor provided some background information concerning her brother. Mr. Zack had a number of medical conditions including paranoid schizophrenia and lupus. He required assistance with day-to-day living which was provided for him at 18 Maynard Avenue. His sister would visit him on a weekly basis.

34Mr. Zack spoke to his sister the day after the attack had occurred. Ms. Traynor advised that on February 25, 2011 Mr. Zack was sitting on the porch of 18 Maynard having a cigarette when a man came at him and kicked him in the face and chest which knocked him to the ground.

35Mr. Zack advised his sister that he covered his face as his attacker kicked and punched at him. Mr. Zack did not know who the attacker was and described him as being a "big guy" who was wearing a balaclava. It was difficult for Mr. Zack to see this man as it was dark outside.

36Mr. Zack did not see where this man came from and didn't see him prior to being attacked. Ms. Traynor did not recall Mr. Zack telling her if anything was said by the man and wasn't sure if she had asked her brother that question. Mr. Zack made no mention of any weapon. Mr. Zack did not tell her how long the attack lasted and did not tell her about anything being stolen from him.

37Ms. Traynor called an ambulance, over her brother's objections, and Mr. Zack was taken to St. Joseph's hospital where he was x-rayed. Mr. Zack suffered two fractures in his nose.

38Ms. Gabbidon testified that she was not at the residence at the time of the attack but did speak to Mr. Zack about it on the same day in the afternoon while they were sitting in the living room at 18 Maynard Avenue. Mr. Zack told her that he was sitting on the first step of the front porch smoking a cigarette when a man came up to him and kicked him and punched him. Mr. Zack told her that his head was down and that the man had come from his the left side, where 20 Maynard Avenue was located. Mr. Zack showed her bruised areas of his face, shoulder and chest.

39Mr. Zack told her that the man did not say anything to him but did not say how long the attack lasted and did not mention the use of a weapon. Mr. Zack also advised her that there was no provocation on his part prior to the attack.

40There was no discussion about what the attacker looked like, but Ms. Gabbidon recalled that Mr. Zack told her that the person was wearing a mask. She agreed in cross-examination that she didn't tell the police he said the person had a mask but she did remember that at the time she was testifying.

41Officer Lorne Foster testified that on February 27, 2011 he attended at 18 Maynard Avenue after receiving a radio call. Upon his arrival he was advised that Mr. Zack had already been taken to the hospital. Once at the hospital he spoke to Mr. Zack in a room at the emergency ward. The Officer observed that Mr. Zack had severe bruising and swelling on his face and that there was dried blood under and around his nose.

42Mr. Zack advised him that on Friday night, the 25th of February, he went to the front porch of 18 Maynard Avenue after dark and was punched and kicked by a large male. Mr. Zack advised that he did not get a good look at the suspect and said that it was possible that the male was white. Mr. Zack also advised Officer Foster that the attack was unprovoked and that no words were exchanged. Mr. Zack was not able to provide the exact time of the incident.

43Officer Foster was not able to get a formal statement as Mr. Zack was shaken up from the incident and it was the Officer's opinion that he wasn't up to it.

The Attack on Mr. Glen Kerr — March 3, 2011

44Mr. Kerr also lived at 18 Maynard Avenue along with Mr. Zack. Mr. Kerr had his own room, however, smoking was not allowed in the house so he would sit on a step stool on the porch to smoke cigarettes. On March 3, 2011 he was smoking a cigarette on the porch alone when he saw a man approach from his left wearing a balaclava. Mr. Kerr believed that the man had come from the back yard. This man quickly ran up the front steps of 18 Maynard Avenue and started beating him.

45There were no words exchanged before the beating started and the person didn't say anything during the attack. The attacker kicked and hit Mr. Kerr with his fists, and Mr. Kerr's glasses fell to the ground. Mr. Kerr was hit primarily on his chest and face and estimated that the attack lasted about 10 minutes. During the attack Mr. Kerr was defending himself by putting his arms up to shield his body. Mr. Kerr was not able to stand up as his attacker was pushing his head down and used his feet to push down on Mr. Kerr's chest while he was hitting him with his other hand. Mr. Kerr's eye was swollen shut and he suffered bruising and bleeding to his face as a result of the attack.

46Mr. Kerr said that he had not done anything to provoke the attack and nothing was stolen from him. Mr. Kerr felt that the attacker might have had some sort of Taser that was used at the beginning of the attack.

47Mr. Kerr testified that the man who attacked him was wearing a balaclava but he said he could see "negro lips" and believed that the man's eyes were blue. Mr. Kerr said that the man's skin colour came across as dark and estimated his height as 5'7" or 5'8" compared to his own height of 5'11". He also described the attacker's build as stocky. Mr. Kerr observed that the man was wearing black leather gloves, a dark pull-over shirt, dark pants and new black lace-up boots. Mr. Kerr described the boots as being a cross between work boots and hiking boots and said that there was a thick base with a rounded end. The boots looked new to him as there were no stains on them. Mr. Kerr estimated the weight of his attacker as being between 180 to 200 pounds and did recall that he told the police he thought the man was 170 pounds.

48The police were able to download footage from the day Mr. Kerr was attacked which showed a man in dark clothing adjusting a mask and jumping over a fence from 20 Maynard Avenue to 18 Maynard avenue and a white band is seen on the wrist.

49Mr. Kerr's DNA (blood) was found on a glove that was seized from Mr. Morrison's residence. This glove had a white band on the wrist.

The Attack on Ms. Nicole Macdonald — March 18, 2011

50In March of 2011 Ms. Macdonald was living at an apartment at 1470 King Street in Parkdale. This address is less than one block west of Maynard Avenue. On March 17, 2011 she went out with some friends and was having drinks at different places with them. Later in the evening after "last call" at the bar she went to an internet cafe to access her Facebook account. She stayed there until 3 or 4 a.m. the next morning, March 18, 2011, and then left to go home.

51While walking home on Queen Street she was asking strangers for cigarettes and after she received some she proceeded to her apartment building. At this time it was about 5 a.m. and it was still dark out. When she approached her building she was listening to loud music through her earphones and as she put her keys in the common front door she was tapped on left shoulder.

52Ms. Macdonald turned around and was punched in the face. At this point they were inside the door in the entrance of the building. She described the punch as being hard and she felt blood coming from her nose. She had been punched in the centre of nose, and was hit several times in the face. She fell to the ground and he kicked her in the head and in the stomach. She was telling him to stop and was trying to protect herself while she was being attacked.

53While she was on the ground he was standing over her and he kept looking behind him where the open door was. It appeared to her that he was checking to see if anyone was coming. Towards the end of the assault he kept getting up and looking at the door and she hoped that he had finished but he came back and kicked her hard in the stomach and then left. Ms. Macdonald estimated that the attack lasted about 2 - 3 minutes and described the force of the punches and kicks as being brutal. Her attacker didn't speak to her during the attack and she had not done anything to provoke the attack. The man didn't take any of her property away from her.

54She described this man as having a "thicker" type of build and estimated that his weight would be between 180 and 200 pounds. She was able to determine that he was not a white man as he had some darker tones in his complexion. The clothing he was wearing was all dark and was loose. He was a little taller than she was and as she is 5'6". She estimated that he was 5'9" tall.

55Ms. Macdonald was not sure, but felt that he might have been wearing a mask as she could not recall seeing any of his features. She couldn't recall if he was wearing a hood over his head.

56After the attack she didn't call the police right away. She wanted to get some sleep and be with friends. She called the police later that day in the afternoon.

57Her injuries consisted of bruises and cuts to the face. Her teeth had come through the bottom of the lip. She had scars inside her mouth and a bump on the back of her head.

58Ms. Macdonald's DNA (blood) was found on a glove seized from Mr. Morrison's residence.

The Attack on Mr. George Wass — March 18, 2011

59Mr. Wass lived across the street from Mr. Morrison at 18 Maynard Avenue and was 62 years of age. Mr. Wass was attacked on March 18, 2011 at approximately 7:00 a.m. and died March 21, 2011. The Crown adduced a number of statements made by Mr. Wass to P.C. Janet MacCalman, P.C. Holubko, D.C. Jankulovski and Ms. Gabbidon. Necessity and Reliability was conceded for the purposes of the preliminary inquiry.

60On March 18, 2011 P.C. MacCalman attended at 18 Maynard Avenue as there was an ambulance call regarding a man that had broken ribs. She arrived at 7:23 a.m. and entered the residence and observed a male covered in blood walking down the hallway towards the front of the house. He approached her and said "I have broken ribs". She asked him who did it and he said "I know it was Chris". She asked him where "Chris" was now and Mr. Wass said he didn't know.

61P.C. MacCalman was having difficulty understanding Mr. Wass as he was a person with emotional issues and was in distress and shock and his speech was difficult to understand. She accompanied Mr. Wass the hospital in the ambulance and spoke with him about the incident.

62Mr. Wass advised her that it happened the previous evening at approximately 9 p.m. He provided a description of the assailant as follows: male black wearing gloves, boots, a brown jacket and a mask. At this time she noted that Mr. Wass was having problems breathing. The paramedics were of the opinion that Mr. Wass may have broken ribs and possibly a punctured lung so she stopped her questions at that time. After they arrived at the hospital Mr. Wass was placed in a room in the emergency ward and she stood by while he was attended to by a registered nurse.

63P.C. MacCalman spoke with Mr. Wass once he was settled in the emergency ward room and he provided some further information. He advised her that he was outside of his house when a big tall guy came up to him and asked him for money. The man punched him the face and kicked him in the ribs and face. The male was black with long curly brown hair and was wearing a brown jacket with a hood, blue jeans, brown boots and a brown mask. After the attack had finished the man left on foot and headed toward King St. This was not a formal statement. Officer MacCalman was paraphrasing but tried to use his words when possible. She believed that Mr. Wass was receiving pain medication at that time.

64Later that day P.C. MacCalman spoke with Mr. Wass again when she returned to the hospital to seize his clothes. Mr. Wass told her that the suspect had said "I am going to get you again".

65A short time later the Officer spoke with Mr. Wass again. He was still unable to give a formal statement due to the medication, but he did provide additional information about the assault. Mr. Wass said that he was having a cigarette and a cup of coffee at 18 Maynard and was standing out front when he was assaulted. He advised her that it had taken place sometime that morning and he was not sure of the time. He also said that his ribs were broken but his lung was not punctured.

66P.C. MacCalman testified that Mr. Wass' demeanour at this time was more relaxed and he seemed a little more coherent. The Officer asked him about the name "Chris" that he had given earlier and at that point Mr. Wass said he never gave the name Chris previously. That was in the afternoon when he gave her the statement about the assault happening that morning. Officer MacCalman was never able to take a formal statement from Mr. Wass.

67Officer Holubko also attended at 18 Maynard Avenue at approximately 7:20 a.m. and observed Mr. Wass and his injuries. Officer Holubko asked Mr. Wass some questions as to what had happened. The responses he recorded were not verbatim. Mr. Wass told him that a tall man had kicked him and described this man as male, black, wearing a brown jacket and blue jeans. Mr. Wass also told the officer that the attacker had a mask over his face. The Officer had difficulty understanding Mr. Wass as Mr. Wass was in pain and it appeared to the Officer that Mr. Wass had a speech impediment.

68Initially Mr. Wass advised this officer that it had happened the night before and later said it had happened that morning. Mr. Wass also said at one point that the male was white and described the same clothing. Mr. Wass said that he knew the man and that the man lived on the corner but was not able to indicate what the house number was. Officer Holubko felt that Mr. Wass was very confused.

69Ms. Gabbidon testified that Mr. Wass had lived at this residence for 15 years and that he suffered from schizophrenia and had a very low IQ. However, after years of living at the residence he was at the point where he could function fairly well and she described him as being the "life of the house".

70Ms. Gabbidon was not at the house when Mr. Wass was assaulted, but she did see him that same day after he returned from the hospital. She observed that his face was bruised and battered. She asked him what had happened and he told her that he had gone out for a cigarette that morning and was sitting on the front step and a man wearing a mask had kicked and punched him all over his body and chest. He showed her the injuries to his face.

71The assault had been witnessed from a distance by Karen Wagner and Allan Kernohan who happened to be walking down the street at the time. Ms. Wagner saw what she described as a "black mass" on the porch of 18 Maynard at approximately 7 a.m. Then she saw a man stand up and kick or hit the other person who was either sitting or was in a reclined position. The man who had just hit or kicked the other then walked away and jogged a bit. She described that person as being dressed in black clothing from head to toe.

72Mr. Kernohan saw two men on the porch and heard a sound as if someone had been punched or kicked then saw a man walk away northbound with dark clothing.

73After Mr. Wass was released from the hospital that same day he appeared to be lethargic and was not eating all of his meals. This was unusual for him. At 7:00 a.m. Monday, March 21, 2011 he was found dead in the hallway of 18 Maynard Avenue. Dr. Toby Rose testified that the cause of death was blunt force trauma to the chest.

74Police were able to download footage from a video camera located at 20 Maynard Avenue which showed that on March 18, 2011 at approximately 7:03 a.m. a man dressed in black is seen walking or jogging across the lawn and driveway of 18 Maynard Avenue, heading north.

75The person in the video stepped in a flower bed and police were able to locate the boot prints in the flower bed and take casts. Sergeant Adach, who was qualified as an expert in the area of comparison in footwear pattern analysis expressed an opinion that there was "strong support" for the conclusion that the boots Mr. Morrison was wearing at the time of the arrest created the footwear impression in the mud.

76Mr. Yousufi, a civilian member of the Toronto Police Service was qualified as an expert in the application of photogrammetry techniques and image analysis. He compared the images of the man in both videos and concluded that the man in both videos was the 5'10.6" tall plus or minus 2 inches. In his opinion the suspect was the same person as the figures were the same height, and the posture and proportion of the two figures were "very identical".

The Attack on Ms. Oriana DaCosta — April 2, 2011

77In April of 2011 Ms. DaCosta was living at 25 Westlodge Avenue in the Parkdale area of Toronto. On April 2, 2011 she was at home having a few drinks and as she couldn't sleep she decided to go for a walk at approximately 1:30 or 2 a.m. She had smoked some crack cocaine about one hour before she left the house. Ms. DaCosta said that she was "feeling good". She walked down to Queen Street and headed west and crossed the road at Sorauren Avenue. She didn't stop during her walk and didn't speak to anyone along the way.

78She decided to head back home after standing at the corner of Queen Street and Westlodge Avenue for a while to see if she could see anyone she knew. She didn't see anyone and proceeded to walk up the ramp to her building and saw a man jogging slowly behind her. There was no one else on the ramp and she didn't see anyone on the street. Just as she got to the front door of the building the man behind her said "what's up" and she said "hey" and he began to beat her.

79The man held onto her by her shirt with his left hand and was punching her with his right hand. She had difficulty seeing as there was blood everywhere. One of the punches was so hard that she fell to the ground and the man started kicking her at least three times. After the kicks he just stopped and said something to the effect of "there bitch".

80During the attack she was screaming "help" "help" as she thought that someone might see or hear her. She was unable to fight back given his strength and because she couldn't see well. He didn't use a weapon and he didn't steal anything from her. Ms. DaCosta estimated that the attacked lasted from 2 – 3 minutes and had no idea why this happened.

81Aside from her assailant saying "hey what is up" and something like "there bitch" he didn't say anything else. She did not see where he went.

82Ms. DaCosta described her attacker as wearing dark pants, and a dark brown hoodie over his head. She did not recall what type of footwear he was wearing and said that he was not wearing gloves. She estimated his height to be 5'7", 5'8" and he seemed to be fit as he was jogging. She described his build as being muscular. His skin colour was brown and he had dark big eyes. Because it happened so quickly she was not able to get any further details regarding his description.

83As a result of the attack Ms. DaCosta had broken ribs, a cut to her left eye that required stitches, a cut to her lips and chin as her teeth had come through the skin and her teeth became loose.

84Ms. DaCosta's DNA (blood) was found on three items of clothing (black jeans, boot, and a glove) seized from Mr. Morrison's residence.

The Attack on Mr. Daniel Chiarelli — April 5, 2011

85In April of 2011 Mr. Chiarelli was living at 17 Maynard Avenue in Toronto, the same residence Mr. Morrison was residing at. Mr. Chiarelli had his own room but shared a kitchen and a bathroom with other residents. Prior to the attack Mr. Chiarelli had arguments with Mr. Morrison. The first incident occurred when he was moving into the building in December of 2010 and involved Mr. Chiarelli's girlfriend. She was using the bathroom and Mr. Morrison apparently opened the door while she was in the washroom, would not close it and was looking at her. Mr. Chiarelli was not present at the time but his girlfriend told him about it. Mr. Chiarelli was very angry about the incident but did not speak to Mr. Morrison about it.

86Another incident occurred when Mr. Chiarelli's son was visiting him at 17 Maynard Avenue. There was some type of confrontation between Mr. Morrison and Mr. Chiarelli's son but Mr. Chiarelli was not present when it occurred. Mr. Chiarelli confronted Mr. Morrison about the incident and told him not to mess with his son. Mr. Morrison responded by saying "be careful what you say" using a threatening tone of voice.

87The next incident occurred approximately six months after Mr. Chiarelli had moved in. One evening when Mr. Chiarelli was returning home Mr. Morrison called Mr. Chiarelli a rapist, which annoyed and perplexed Mr. Chiarelli. Mr. Chiarelli responded by saying "what the hell are you talking about" and proceeded to go to his room.

88Mr. Chiarelli also advised that Mr. Morrison pounded on Mr. Chiarelli's door in an angry manner approximately a dozen times in the early hours of the morning. Mr. Chiarelli would open his door after this happened and saw that it was Mr. Morrison. Mr. Chiarelli felt that Mr. Morrison hated him and he was afraid to come out of his room when this happened.

89On April 5th, 2011 Mr. Chiarelli had fallen asleep while watching a movie with his girlfriend. At approximately 3 a.m. his girlfriend had to leave and he walked her to the street car stop on Queen Street and Jameson Avenue and while walking back on Leopold Street to his apartment he thought he saw the accused, Mr. Morrison standing in a driveway putting winter garments over his face to cover it up. He recognized Mr. Morrison's haircut, which he described as being "80s" and said that not many people had that style of cut. However, in cross-examination he agreed that he did not tell the police this at the time of his initial interview.

90While Mr. Chiarelli was walking southbound on the sidewalk of Maynard Avenue he was attacked in front of a white apartment building. Mr. Chiarelli heard footsteps behind him getting faster and faster and turned to look at who was behind him and was hit on the side of the head. This person didn't say anything to him before striking him.

91Mr. Chiarelli wasn't sure what he was hit with but thought it was a fist. He spun around and fell to the ground and the person started to kick his back and then started to kick him in his face. The person was standing above Mr. Chiarelli who had put his fists to his temples to protect himself and his body was in a fetal position. As a result Mr. Chiarelli's lip was split and his nose was bleeding. By this time Mr. Chiarelli was in the middle of the roadway. Nothing was stolen from him and he had done nothing to provoke the attack.

92Mr. Chiarelli estimated that he was kicked at least 10 times in his ribs and on his head. Mr. Chiarelli yelled loud enough to get the attention of another person in the neighbourhood who called out to the attacker to stop about one minute into the altercation. The attacker ran away at this point.

93Mr. Chiarelli tried to follow the man but was not able to as he was still dazed from the assault. He made his way to a pay phone on Queen Street and called 911 and waited for an ambulance that took him to St. Joseph's hospital where he was seen by a doctor. Mr. Chiarelli received stiches in his lip and his ribs were fractured.

94Mr. Chiarelli believed that the person who attacked him was the same person he had seen in the driveway as there was no one else around and only one minute had elapsed from the time he noticed the person in the driveway to the time of the attack.

95Mr. Chiarelli described the attacker as wearing very dark clothing and said that his entire head was covered with what appeared to be a ski mask and a hood was also pulled up over his head. The person was wearing boots but Mr. Chiarelli was not sure if the person was wearing gloves. Mr. Chiarelli recalled that the skin on the person's forehead appeared to be dark and he estimated that the person was 5'9" with a medium build weighing approximately 160- 170 pounds.

96Mr. Chiarelli identified the accused in the courtroom as being Mr. Morrison who had lived at the same rooming house in April of 2011.

Position of the Parties

97Both parties agree on the general principles to be employed when a court is determining whether or not the proffered evidence should be admissible as similar act evidence but disagree as to whether or not the evidence led at this preliminary inquiry has the requisite degree of similarity to meet the test.

Position of the Crown

98The Crown relies on R. v. Handy, 2002 SCC 56 for the submission that the threshold test for admissibility requires a weighing of the probative value of the evidence against its prejudicial effect and that the onus is on the prosecution to satisfy the trial judge that the probative value is greater than the prejudicial effect on a balance of probabilities.

99The Crown referred to the policy basis for the exception regarding similar act evidence to the general rule that bad character evidence is inadmissible found at paragraph 48 of the Handy decision.

Canadian case law recognizes that as the "similar facts" become more focussed and specific to circumstances similar to the charge (i.e., more situation specific), the probative value of propensity, thus circumscribed, becomes more cogent. As the differences and variables that distinguish the earlier "similar facts" from the subject matter of the charge in this type of case are reduced, the cogency of the desired inferences is thought to increase. Ultimately the policy premise of the general exclusionary rule (prejudice exceeds probative value) ceases to be true.

100In addition the Crown must show that there is an absence of collusion, Handy paras. 111-113. The Crown submits that although there may have been an opportunity for collusion as the victims lived close to one another, there is no evidence of collusion in this case.

101The Crown submits that when considering the issue of identification the court must find that the evidence shows either a unique trademark or signature or that there are a number of sufficient similarities which may cumulatively be cogent enough to be admissible despite the lack of a unique trademark.

102The Crown relies on four cases for this submission. The leading case is R. v. Arp. In this case two women were murdered two-and-a-half years apart in the same city under similar circumstances. The appellant argued that the trial judge and the Court of Appeal had erred in ruling that the similar fact evidence was admissible. At paras. 44 and 45 of that judgment the court set out the approach that should be taken to a determination of the admissibility of similar act evidence when identification is in issue,

[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. The probative value must, of course, significantly outweigh the prejudice to the accused for the evidence to be admissible. See B. (C.R.), supra. However, the majority in B. (C.R.), at pp. 732-33, rejected the proposition that the evidence must show a "striking similarity" between the acts in question in order for the evidence to have the requisite probative value. I agree that the requirement of "striking similarity" needs to be qualified. This point is carefully made in R. v. P., [1991] 3 All E.R. 337 (H.L.), where the accused was charged with the rape of both his daughters and with committing incest with them. The counts were tried together, and the evidence of both daughters was admitted in relation to each count to prove the commission of the crime (at p. 348):

When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it, notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include 'striking similarity' in the manner in which the crime is committed, . . . the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.

Since the evidence of both girls described a prolonged course of conduct involving the use of force and general domination, the circumstances, taken together, gave strong probative force to the evidence of one in respect of the other, notwithstanding that the manner of the commission of the alleged crimes did not disclose a "striking similarity".

[45] Instead, 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 admission of the evidence. Where identity is at issue ordinarily, the trial judge should review the manner in which the similar acts were committed -- that is to say, whether the similar acts involve a unique trademark or reveal a number of significant similarities. This review will enable him or her to decide whether the alleged similar acts were all committed by the same person. This preliminary determination establishes the objective improbability that the accused's involvement in the alleged acts is the product of coincidence and thereby gives the evidence the requisite probative force. Thus, where the similar fact evidence is adduced to prove identity, once this preliminary determination is made, the evidence related to the similar act (or count, in a multi-count indictment) may be admitted to prove the commission of another act (or count).

103In R. v. Nicholas, Mr. Nicholas was charged with breaking into three houses over a four month period and sexually assaulting the female occupants in Scarborough.

104The Crown brought a similar act application with respect to two of the incidents arguing that there were sufficient similarities between them to render objectively improbable the likelihood that two different perpetrators committed the offences. The trial judge excluded the similar fact evidence finding that it did not amount to a unique signature or trade mark as his view was that the only unique factor in each case was that the perpetrator had taken a container of orange juice from the refrigerator and had consumed part of all of it as he went through the house. The trial judge also found that there were a number of similarities but none of those similarities either alone or cumulatively were unique enough to satisfy him that the same person committed the acts. At para. 60 the court set out the similarities as follows:

(a) the age of the each victim;

(b) each lived with a disabled husband;

(c) each offence occurred during the early hours of the morning;

(d) the perpetrator fled at the first sign of resistance;

(e) in each case the perpetrator was in the victim's bedroom when discovered, in one case lying atop of the victim, and in the other standing beside her bed. In both cases an attempt was made to cover the face of the victim.

In my view, none of the above factors are sufficiently unique, either alone or cumulatively to satisfy me on the balance of probabilities that the same person necessarily committed these acts. In other words, I consider the probative value of the proposed evidence to be slight and its prejudicial effect likely to be correspondingly high. Assuming the [F.G.] DNA evidence were admitted, the proposed evidence would make a conviction by the jury on the [A.U.] counts overwhelmingly likely, even with the most careful instructions from me.

105The Ontario Court of Appeal found that the trial judge had erred by finding that there had to be uniqueness to the factors, individually or cumulatively instead of considering whether the cumulative evidence, including the close timing of the offences, demonstrated that there was a significant degree of similarity to render the objective possibility of coincidence improbable.

106The Court of Appeal noted that the dissimilarities between the two crimes had to be taken into account but found that the similarities were so strikingly similar that the probative value outweighed the prejudicial effect. The court listed the dissimilarities and similarities at paragraphs 71 and 72,

71 The dissimilarities between the incidents must be taken into account:

1. In one incident, the intruder did not say anything; in the other, he said "Relax"

2. In one incident, there was more wandering by the intruder through the house

3. In one incident, the orange juice was left in the bedroom where the assault took place, in the other the orange juice was left in the empty spare bedroom

4. In one case, the intruder lay on top of the victim; in the case of the other, he was holding a pillow over her head

5. In one case, the victim's husband was sleeping in a separate bedroom; in the other, the husband was sleeping next to the victim

72 There are, however, a number of significant similarities between the subject matter of the charge and the similar acts, as well as the circumstances surrounding the acts:

(1) The intruder in both cases took orange juice out of the fridge, consumed some of it, and carried it upstairs

(2) Both victims were female

(3) The victims were sixty-eight and seventy-five years old

(4) Both victims had disabled husbands who were sleeping upstairs at the time of the attack

(5) Both incidents took place in Scarborough within weeks of each other

(6) The homes of both victims were within walking distance of the residence of Mr. Nicholas

(7) Both victims lived in close proximity to a park

(8) The victims lived within blocks of each other

(9) Both acts occurred in the early a.m. hours

(10) The intruder in both cases took a small amount of money and did not take anything else of value

(11) Both victims described their attacker in similar terms, such as "not a very big person"

A new trial was ordered.

107In R. v. MacCormack, Mr. MacCormack was charged with robbing four banks within one month. The Crown brought a similar act application. The similarities among the robberies were listed at par 63 of that decision,

63 In this case, the acts took place over an interval of one month. There were four occurrences. Each of the premises was a branch of the same bank, CIBC. Each was located in a strip mall, easily accessible from a controlled access highway. The bandit directly approached the teller without hesitation and demanded money. In three instances, the demand was for larger denomination bills. The bandit made no gestures, spoke in a low voice and said nothing but the words of demand he uttered. In every instance, the bank had few, if any, other customers, a circumstance apparently visible from outside the branch by a casual glance through the glass entrance doors and adjacent windows of the bank. The four branches are located in reasonable proximity to each other, three in Burlington, the fourth in Mississauga.

108The Court of Appeal at paragraphs 65 and 66 upheld the trial judge's decision to admit the evidence on all counts finding that the authorities allow for an accumulation of significant similarities to allow satisfy the threshold required for admissibility.

109In R. v. Kembo, [2010] B.C.J. No. 1289 (S.C.), Mr. Kembo was charged with first degree murder of his wife, step-daughter and two friends. The Crown brought a similar act application to admit the evidence on each count as similar fact evidence on the other three counts. The Crown submission was that the pattern surrounding the deaths was strikingly similar. The similarities are set out in paragraphs 36 and 37 of the decision,

36 The Crown submits the evidence reveals the unifying feature of a distinctive modus operandi that runs like a common thread through all the counts. The befriending or seducing of each victim was the first step in a distinctive pattern of behaviour that underlay all of the instances. Mr. Kembo had a propensity to groom vulnerable friends and lovers. He repeatedly assumed the pretend role of benefactor to them, and then used their trust in him to gather personal information and lay the groundwork to ensure that he stood to benefit financially from their deaths. Once this was the case, each victim was murdered by him. The Crown argues the evidence discloses a repetition of conduct in a specific context and demonstrates that Mr. Kembo had a distinctive and specific system to kill those close to him, in turn a wife, a friend, a girlfriend and a stepdaughter, once he had ensured that he stood to gain financially from their deaths.

37 His primary motive to murder each victim was financial. Because each victim offered different possibilities for financial exploitation and benefit to Mr. Kembo, the operation of the scheme differed slightly in the details, but not in its overall intent. The fact that all four victims were low net worth individuals was part of the system as it allowed Mr. Kembo to fly below the radar and say to police, as he did when he was arrested in July 2005"Why would anyone kill that person? He/she has nothing to offer anyone."

110The Court allowed the Crown application at paragraph 59 of that decision relying on the Nicholas decision, supra, finding that the system or pattern itself didn't have to be unique; it only had to reveal a "series of significant similarities sufficient to render the objective possibility of coincidence improbable."

111The Crown referred to the Handy decision which provides guidance with respect to factors that a court should consider in determining whether or not the acts in question are strikingly similar at paras. 82-84.

82 The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves. Factors connecting the similar facts to the circumstances set out in the charge include:

(1) proximity in time of the similar acts: D. (L.E.), supra, at p. 125; R. v. Simpson (1977), 35 C.C.C. (2d) 337 (Ont. C.A.), at p. 345; R. v. Huot (1993), 16 O.R. (3d) 214 (C.A.), at p. 220;

(2) extent to which the other acts are similar in detail to the charged conduct: Huot, supra, at p. 218; R. v. Rulli (1999), 134 C.C.C. (3d) 465 (Ont. C.A.), at p. 471; C. (M.H.), supra, at p. 772;

(3) number of occurrences of the similar acts: Batte, supra, at pp. 227-28;

(4) circumstances surrounding or relating to the similar acts (Litchfield, supra, at p. 358);

(5) any distinctive feature(s) unifying the incidents: Arp, supra, at paras. 43-45; R. v. Fleming (1999), 171 Nfld. & P.E.I.R. 183 (Nfld. C.A.), at paras. 104-5; Rulli, supra, at p. 472;

(6) intervening events: R. v. Dupras, 2000 BCSC 1128, [2000] B.C.J. No. 1513 (QL) (S.C.), at para. 12;

(7) any other factor which would tend to support or rebut the underlying unity of the similar acts.

83 On the other hand, countervailing factors which have been found helpful in assessing prejudice include the inflammatory nature of the similar acts (D. (L.E.), at p. 124) and whether the Crown can prove its point with less prejudicial evidence. In addition, as stated, the court was required to take into account the potential distraction of the trier of fact from its proper focus on the facts charged, and the potential for undue time consumption. These were collectively described earlier as moral prejudice and reasoning prejudice.

84 This list is intended to be helpful rather than exhaustive. Not all factors will exist (or be necessary) in every case. A comparable approach is utilized in other common law jurisdictions, including England (see Director of Public Prosecutions v. Kilbourne, [1973] A.C. 729 (H.L.), at p. 758), and in the United States (see C. B. Mueller and L. C. Kirkpatrick, Federal Evidence (2nd ed. 1994 & Supp. 2001), vol. 2, at s. 161; United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998), certiorari denied, 525 U.S. 887 (1998)).

112The Crown submits that in this case there is a high degree of similarity among the incidents before the court considering that,

• There are 10 attacks on 9 different victims
• 8 of the incidents are very close in time, and despite the fact that the incidents involving Mr. Markow predate those offences by one year, the details of the 8 incidents are so similar that the objective possibility of coincidence is improbable
• All of the victims were approached from behind or out-of-sight
• The beatings were all vicious attacks involving punching and kicking about the head and torso
• The attacker was always alone
• The victims were all alone when attacked
• All of the attacks continued once the victim was on the ground
• There was no apparent reason for the attack
• The attacks all occurred in a small geographical area of Toronto where Mr. Morrison lived either on or near Maynard Avenue
• Every victim who was a co-resident was attacked a short distance away from the home and every victim who was not a co-resident was attacked at the entrance of their homes
• Nothing was stolen or taken from the victims
• Nothing was ever said during the attacks
• All of the victims describe their assailant as either wearing a mask or having the face covered
• All of the victims describe a male wearing dark or black clothing
• All of the victims describe the height of the man as being between 5'8" and 6" and
• All of the victims appear to be vulnerable or of low net worth

113The Crown concedes that dissimilarities must also be taken into account but submits that the majority of dissimilarities arise from the descriptions provided by the victims of the attacker. The Crown submits that differences are to be expected as the period of observation was brief, the attacks occurred at different times of day when good lighting was not always available, and the victims were very stressed as they were being aggressively punched and kicked. The Crown relies on the decision of R. v. Johnson [2006] O.J. No. 4262 (S.C.J.) to illustrate the point at paras. 57 – 58,

57 I should note that, in relation to this issue, counsel also referred me to the fact that OK testified that the assailant was a couple of inches taller than he was, and he was approximately 5'6" to 5'7", while the accused, counsel said, is 6'2". There is no evidence before me that the accused is 6'2". The only information I have about his height, to my recollection, is the height recorded on his fingerprint form. The form indicates that his height is 183 cm., or just slightly less than 6'. But even if he is in fact 6'2", I find this discrepancy of no moment. First, I note that FL thought he was 6'1". Further, I observe that the height estimates of the various witnesses varied significantly. This is hardly surprising. The witnesses saw their assailant in each case in highly stressful circumstance, largely in the dark, for much of the time while the assailant was not standing or, when he was standing, generally only briefly and in circumstance where the whole length of his body was not visible to them, and were often directed to look away from him.

58 In considering this issue, I am not unmindful of the fact that there are other differences amongst the four incidents. There are differences in whether a gun, knife or both were used. There are differences in what the perpetrator wore and what his weapon looked like, or at least what the witnesses recalled concerning clothing and weapons. There are differences in the sex acts ultimately insisted upon, and not insisted upon. The list goes on. But none of these matters alters my view that the FL and OK incident is sufficiently similar to the other three incidents that it is likely that the same person committed all of the acts.

114The Crown further submits that notwithstanding the differences noted above there is still a constellation of common descriptors that the victims use in relation to the attacker as follows:

• The attacker is dressed in dark clothing
• The attacker is wearing a mask or balaclava
• The attacker is wearing dark boots
• The attacker is wearing gloves
• The attacker is light-skinned black male
• The attacker is 5'8" to 6', and
• The attacker is "stocky" or "muscular"

115The Crown submits that if the court finds that the acts are similar and are likely to have been committed by one person, that there is ample evidence connecting Mr. Morrison to these offences given the following;

• Mr. Morrison was identified by Mr. Markow and Mr. Chiarelli
• DNA (blood) was found on Mr. Morrison's clothing and footwear from four of the victims- Glen Kerr, Nicole Macdonald, Oriana DaCosta and Daniel Chiarelli
• There is "strong support to believe that the boots worn by Mr. Morrison at the time of his arrest made the footwear impression at the scene of the attack against George Wass
• Notwithstanding the frailties of the eyewitness identifications there are some similar descriptors common to all of the victims, and
• There was evidence of animus involving Mr. Allison, Mr. Chiarelli and Mr. Markow

Position of the Defence

116As I indicated earlier counsel for Mr. Morrison agreed with the general principles regarding similar act as articulated by the Crown in this case but takes issue with whether or not there is a significant degree of similarity among the offences.

117Ms. Bloomberg submits that most of the similarities referred to by the Crown are really just generic traits and that more than one person is likely to have committed these acts. For instance, she submits that attacks on the street are by definition sudden and unprovoked.

118Ms. Bloomberg submits that the dissimilarities in the descriptions provided by the witnesses are so troubling that they amount to no evidence of identification and referred to the decisions in R. v. Herrera, [2008] O.J. No. 3040 (S.C.J.), R. v. Gibbs, [2001] O.J. No. 479 (S.C.J.) and R. v. Boucher.

119The Herrera case was an application by the Crown for an order of mandamus ordering the preliminary hearing judge to commit the accused for trial on charges of sexual assault, assault and uttering threats. The complainant alleged that she was forced to engage in sexual intercourse by a friend's boyfriend who was staying at her apartment and that he threatened her with death if she told anyone. The complainant identified the accused in the prisoner's dock seven years later and said that she had recognized him when she saw him a year earlier at court.

120There were problems with her evidence on the issue of identification. She said that she had a poor memory and agreed that when she saw him at court one year before the preliminary inquiry she knew he was the man the police had arrested and assumed he was her assailant. The police had told her that they had arrested the man who attacked her. She also said that she assumed that the accused in court at the preliminary inquiry was her attacker. She also said that she recognized the accused "a little bit" and agreed in cross-examination that he looked familiar because of the tattoos.

121The Summary Conviction Appeal Judge dismissed the Crown's application to quash the discharge of Mr. Herrera and reached the same conclusion that the preliminary hearing judge had that the evidence of the complainant reviewed the complainant's evidence was so problematic that it did not amount to identification evidence at all.

122In Gibbs, the defence brought an application to quash his committal for trial. Mr. Gibbs was charged with trafficking cocaine. The accused was alleged to be the "back-end" of a drug transaction involving an undercover officer. The man that had supplied the cocaine to the individual who subsequently sold it to the Officer was the driver of a car that the "front-end" had gone to retrieve some crack cocaine. There was a gap in the surveillance evidence between the time that the drug dealer was observed and the time the accused was arrested. There was a discrepancy in the description of the vehicle at the scene and the vehicle in which the accused was arrested in later that day. The description of the driver and the drug dealer was as follows;

• Black Males,
• Both wore hats, one was light brown and one was grey, and
• Both wore jackets, one was light coloured and one was beige.

123The Summary Conviction Appeal Court judge granted the application holding that that the evidence did not even amount to evidence of resemblance because there was no evidence about the accused's personal characteristics other than male, black and that was coupled with a dissimilar hat colour.

124In Boucher the accused appealed from dismissal of an application to quash an order committing Mr. Boucher and his two co-accused for trial on charges of robbery and breach of probation. The court reviewed the identification evidence. The theory of the Crown case was that Mr. Harju and Mr. Vaillancourt were the two masked men who had robbed a bank and that Mr. Boucher was a party to the offence as he drove the getaway car. In that case there were significant gaps in the identification evidence as there was no direct evidence that Mr. Boucher or his car were at the bank, the description of the tear-away pants described by one of the witnesses at the bank did not match the tear-away pants worn by Mr. Vaillancourt in a material way, as they did not have a white stripe down the side, and there was no direct evidence that Mr. Harju was the man with Mr. Vaillancourt who ran into the hotel after the robbery. There was no physical evidence linking any of the accused to the robbery.

125Ms. Bloomberg argues that the attacks in the case before the court are similar to generic street muggings. She submits that if there was a particular weapon used, such as brass knuckles, that would provide evidence of very distinct characteristic upon which the court could reach the conclusion that the attacks were likely committed by one person; however, the use of fists and feet is hardly a distinct characteristic.

126Ms. Bloomberg takes exception to the Crown's characterization of the victims as being vulnerable or financially marginalized. She submits that there is no evidence that Mr. Morrison knew all of the victims or was privy to any information about their social status or mental health. She also submits that there are with respect to the ages of the victim that range from age 28 to 63 and that both males and females were attacked (6 males and three females).

127Ms. Bloomberg argued that there were important dissimilarities in the descriptions of the attacker provided by the witnesses. For instance, some witnesses said that they saw dark skin and some thought that their attacker might be white. Mr. Wass gave a statement that his attacker had black long curly hair and initially said that the attacker was "Chris".

128Ms. Bloomberg pointed out that there were differences in the description of height and weight as follows,

• Mr. Hendricks estimated the suspect as 6 "tall
• Mr. Rooplall estimated 6" or more
• Ms. Murray estimated 5'6" to 5'7"
• Mr. Allison estimated 5'10" to 6" and said the assailant was slim
• Mr. Zack and Mr. Wass did not provide a height estimation and the assailant in relation to the Zack assault was described as "large" and the assailant on the Wass incident was described as "tall"
• Glen Kerr and Oriana DaCosta describe an attacker as between 5'7" and 5'8" with a muscular build
• Nicole Macdonald and Mr. Chiarelli estimated the assailant's weight as approximately 160 to 170 pounds, and
• Mr. Brodzinski described the attacker as a tall very slim man,

129Ms. Bloomberg also refers to another distinction in the case before the court as Mr. Kerr testified that he believed that an "inverted taser" was used when he was attacked and that this suggests that this attack was committed by a different person.

130There were also difference, in Ms. Bloomberg's submission with respect to three of the attacks as there were words spoken to Mr. Markow, Ms. DaCosta and Mr. Wass. Mr. Markow testified that after the second attack Mr. Morrison said "fuck you". Ms. DaCosta testified that her attacker first said "what's up" and after the attack said "there bitch". Mr. Wass told others that his assailant asked him for money and told him that he was going to "get" him again after the attack.

131Finally, Ms. Bloomberg submits that the cases relied upon by the Crown are distinguishable on their facts and contained more similarities that the case at bar.

Analysis

Are the ten attacks in this case admissible against one another as similar fact?

132At the outset I can indicate that I agree that the generic descriptions common to the attacks do not assist in assessing whether the incidents can demonstrate the necessary degree of similarity. I also agree that in the abstract the evidence that the attacker wore a mask and attacked several people is insufficient. However, in this case the parallels amongst the ten occurrences comfortably exceed the generic and meet the necessary standard for admission as similar fact evidence.

133As I have already set out the principles involved in making a determination on similar act application with respect to the issue of identify I will not repeat the law but remind myself that the test for admission when the Crown seeks a ruling to have the similar act apply to the other acts in the indictment for the purposes of identification, is that there must be "a number of significant similarities, taken together, may be such that by their cumulative effect, they warrant admission of the evidence" see Arp at para. 45. I will proceed to go through the factors as set out in the Supreme Court of Canada decision in Handy at para. 82.

Proximity in Time of the Similar Acts

134In this case the first two attacks were committed approximately a year before the eight others. At first blush it might seem that these two attacks on Mr. Markow are not proximate but one year is not a particularly long period of time when one considers that there were 2½ years between the two homicides in the Arp decision. Therefore I am satisfied that the acts are proximate in time.

Extent to Which the Other Acts are Similar in Detail to the Charged Conduct

135There are a number of ways in which the acts are similar as follows;

• All of the victims were approached from behind or out-of-sight
• The beatings were all violent attacks involving punching and kicking about the head and torso
• The attacker was always alone
• The victims were all alone when attacked
• All of the attacks continued once the victim was on the ground
• There was no apparent reason for the attack
• The attacks all occurred in a small geographical area of Toronto where Mr. Morrison lived, either on or near Maynard Avenue
• Every victim who was a co-resident was attacked a short distance away from the home and every victim who was not a co-resident was attacked at the entrance of their homes
• Nothing was stolen or taken from the victims
• Nothing was ever said during the attacks
• All of the victims describe their assailant as either wearing a mask or having the face covered
• All of the victims describe a male wearing dark or black clothing
• All of the victims describe the height of the man as being between 5'8" and 6" and
• All of the victims appear to be vulnerable or of low net worth

136There are also some differences in this case as noted by Ms. Bloomberg in her submissions. However, most of the dissimilarities relate to the descriptions provided by the witnesses. As Justice Dambrot noted in his decision in Johnson it is not surprising that the witnesses' descriptions varied. They all had different vantage points and each person will perceive or describe what they have seen in their own way depending on numerous factors such as age, opportunity to see, cultural background, etc. In the case of the victim witnesses they were all in a highly stressful situation as they were being punched and kicked.

137These dissimilarities also show that although there may have been opportunity to collude, these witnesses did not, and otherwise their evidence would likely be much more closely aligned in terms of the descriptions they gave.

138There were also other differences in terms of Mr. Kerr's evidence that a taser was used and in three incidents where words were spoken by the attacker. But this doesn't change my view that the acts are sufficiently similar such that they were likely committed by the same person. It is unlikely that an attacker could commit more than one offence in the exact manner in which he or she had done before as there are many environmental issues that cannot be controlled.

Number of Occurrences of the Similar Acts

139In this case there were ten attacks, not just two or three. Yet the aforementioned similarities persisted. This is significant in my view.

Moral Prejudice and Reasoning Prejudice

140In the case at bar the inflammatory nature of the evidence is quite high given that a number of particularly vulnerable victims were punched and kicked about the head and torso and one victim died shortly after the beating. However, the similar act evidence is necessary for the Crown as the perpetrator wore a mask, particularly regarding the attacks against those victims for which there was no DNA evidence found on Mr. Morrison's clothing and shoes (Mr. Wass, Ms. Garrett, Mr. Allison and Mr. Zack).

141In this case there is no danger of the trier of fact being distracted regarding the proper focus on the facts charged because the similar acts relate to all of the charges before the court. I conclude that the probative value substantially outweighs any prejudicial effect.

Link to the Accused

142With regard to the second step in the analysis there is DNA (blood) evidence that links Mr. Morrison to the attacks on Ms. DaCosta, Ms. Macdonald, Mr. Chiarelli and Mr. Kerr, along with two direct identifications linking Mr. Morrison to the attacks on Mr. Markow and Mr. Chiarelli. There is evidence of a boot print linking Mr. Morrison to the attack on Mr. Wass and evidence of animus on the part of Mr. Morrison towards Mr. Markow, Mr. Allison and Mr. Chiarelli. The links to the accused are significant.

Conclusion

143For these reasons the Crown is permitted to use the similar fact on all charges before the court in relation to each other on the question of identification.

Released: June 19, 2013

Signed: "Justice Chapin"