COURT OF APPEAL FOR ONTARIO DATE: 20211214 DOCKET: C68469

Fairburn A.C.J.O., Doherty and Watt JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Jevane Fuller Appellant

Counsel: Paul Calarco, for the appellant Gerald Brienza, for the respondent

Heard: October 7, 2021 by video conference

On appeal from the convictions entered on May 13, 2020, and the sentences imposed on June 18, 2020, by Justice J.I. Bourgeois of the Ontario Court of Justice.

Doherty J.A.:

Overview

[1] The Crown alleged that the appellant broke into a number of homes in the City of Ottawa between October 30, 2018 and April 2019. He ultimately faced a 34-count information, alleging 28 separate break-ins. The appellant was convicted of 24 break and enters and one count of attempted break and enter. He was acquitted on two of the break and enter charges and convicted of the included offence of possession of stolen property on one of the break-in charges.

[2] Two of the break-ins led to additional charges against the appellant. In both cases, residents returned home during the break and enter. In one instance, the homeowner was assaulted and tied up, leading to convictions on charges of assault, confinement and robbery, as well as breaking and entering (counts 9-12). The assault, confinement and robbery charges are the subject of a separate ground of appeal. I will refer to them as the “Black Sage Crescent charges”. On the second occasion when two residents interrupted the break-in, the confrontation led to additional convictions on charges of threatening and possession of burglar tools (counts 16-18).

[3] The appellant, who has a serious criminal record and was on parole when he committed these offences, received a total sentence of 15 years.

[4] The appellant appeals conviction, seeks leave to appeal sentence and, if leave is granted, appeals his sentence.

[5] The appellant raises three issues on the conviction appeal:

• Did the trial judge fail to properly assess the evidence of the Crown witness, Elias Zidan?
• Did the trial judge err in admitting evidence on some counts as similar act evidence on other counts in the information?
• Did the trial judge err in admitting evidence of prior robberies committed by the appellant as similar act evidence in respect of the Black Sage Crescent charges?

[6] On the sentence appeal, the appellant acknowledges that a lengthy penitentiary term was necessary but argues the trial judge failed to consider the totality principle. He submits a 10-year sentence would have been appropriate. The appellant also argues that the trial judge erred in imposing a victim fine surcharge. The Crown concedes this point in light of R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599.

[7] For the reasons that follow, I would dismiss the appeal except for the removal of the victim fine surcharge.

The Facts

[8] On the Crown’s theory, the appellant was a virtual one-man crime wave in the City of Ottawa in the fall and winter of 2018-2019. He was convicted of 24 break-ins that occurred in different residential areas in Ottawa. Some of the break-ins occurred on the same day and in the same neighbourhood.

[9] In the vast majority of cases, there was no one home when the burglar entered. The burglar gained entry by breaking a window on or near the front door, reaching through the broken window and unlocking the door. Almost all of the break-ins occurred during the day and on a weekday. In many cases, the burglar stole jewellery, electronics, cameras or guitars. In some cases, other things were taken, including cash.

[10] The Crown relied on the following evidence:

• When the appellant was arrested on April 16, 2019, he was in possession (personal or constructive) of property stolen in seven of the break-ins. Those break-ins occurred between February 2, 2019 and April 8, 2019.
• Elias Zidan, the owner of a jewellery store called Noura’s, purchased property, including jewellery, cameras and electronics, from the appellant between February and April 2019. Some of that property was identified as coming from 13 of the break-ins which occurred between October 30, 2018 and April 8, 2019.
• On three of the break-in charges (counts 32, 33, and 34), the appellant was found in possession of property stolen during those break-ins and Mr. Zidan also identified property sold to him by the appellant that came from the same three break-ins.
• A white four-door Honda Civic with a sunroof, alloyed wheel rims and a black scuff mark on the passenger side door was seen at or very near the scene of several of the break-ins. In some cases, video surveillance or eyewitness evidence directly linked the perpetrator of the break and enter to the white Honda Civic.
• The white Honda Civic, seen at the scene of several of the break and enters, matched the description of the vehicle owned by the appellant’s girlfriend. The appellant regularly drove that car.
• A witness, who encountered the burglar in his home and struggled with him, saw the burglar run to a white Honda Civic and drive away (count 16-18).
• Video taken at or near the scene of several of the break-ins and descriptions of the perpetrator provided by witnesses were consistent in their description of the colour, age, accent, size and sex of the perpetrator, as well as the clothing worn by the perpetrator. On some occasions, the perpetrator was carrying, what appeared to be, the same bag.
• Clothing matching that worn by the perpetrator in a break-in in March 2019 was seized at the appellant’s apartment after his arrest on April 16.
• The appellant’s cellphone pinged off cellphone towers within two or three kilometres of almost all of the break-ins during the timeframe in which the break-ins occurred. [1]

[11] The appellant did not testify. The defence called a witness, who claimed to have committed all of the break-ins. His evidence was rejected by the trial judge. The appellant does not allege error in the rejection of that evidence, and I need not review that evidence in these reasons.

Rulings at Trial

[12] At trial, the Crown submitted that evidence pertaining to each of the break and enter counts should be admissible as similar act evidence on the other break and enter counts. The Crown argued the evidence was admissible on the issue of the identity of the burglar.

[13] The trial judge allowed the application in part. She held that evidence tendered on 12 of the break and enter counts was admissible as count-to-count similar act evidence in respect of the other break and enter counts in the group of 12 (counts 1, 2, 3, 5, 6, 7, 8, 12, 15, 17, 29 and 34). The appellant challenges that ruling.

[14] The Crown also sought to introduce evidence of five home invasion robberies committed by the appellant in Toronto in 2011. The appellant had pled guilty to those charges in 2012. The Crown argued the circumstances of those offences, as set out in the sentencing reasons of the trial judge, were admissible as similar act evidence going to the identity of the person who assaulted, confined and robbed the victim in the Black Sage Crescent break-in (counts 9-11). The trial judge ruled the evidence admissible on those counts. The appellant challenges that ruling.

[15] Before examining each of the appellant’s arguments, it is helpful to identify the convictions that are potentially affected by each argument. As indicated above, the trial judge ruled that the evidence of 12 of the break-ins was admissible as count-to-count similar act evidence in relation to other break-ins in that group of 12. However, with respect to two of those break-ins (counts 5 and 34), the appellant was also found in possession of property stolen during those break-ins. The appellant acknowledges that those convictions stand regardless of the correctness of the similar act ruling. The appellant was also acquitted on one of the counts from the group of 12 (count 8). Consequently, the ruling on the count-to-count similar act evidence application potentially affects the convictions on 9 of the break-ins (counts 1, 2, 3, 6, 7, 12, 15, 17 and 29).

[16] The trial judge’s ruling holding the evidence of the Toronto robberies admissible as similar act evidence affected only the verdicts on the Black Sage Crescent charges arising out of the assault, confinement and robbery of the victim (counts 9-11). The trial judge did not rely on the evidence pertaining to the Toronto robberies to find that the appellant committed the break-in at the Black Sage Crescent residence (count 12). She did, however, rely on the count-to-count similar act evidence in concluding that the appellant committed the Black Sage Crescent break-in.

[17] The trial judge also convicted the appellant of 11 break-ins in respect of which she did not admit cross-count similar act evidence (counts 14, 19, 20, 21, 23, 25, 26, 27, 30, 32 and 33). On each of these charges, the trial judge relied on Mr. Zidan’s evidence that the appellant had sold him property stolen during that break-in. On two of those counts, the Crown also led evidence putting the appellant in possession of property stolen during the break-ins (counts 32 and 33). The appellant accepts that even if the trial judge erred in her treatment of Mr. Zidan’s evidence, the convictions on those two counts must stand. The convictions on the nine remaining charges stand or fall on the merits of the appellant’s argument concerning the treatment of Mr. Zidan’s evidence by the trial judge.

The Grounds of Appeal

A. The Trial Judge’s Treatment of Mr. Zidan’s Evidence

[18] The appellant submits the trial judge made little reference to Mr. Zidan’s evidence in her reasons and did not analyze the reliability of that evidence or Mr. Zidan’s credibility as a witness. The appellant further contends the trial judge ignored material uncertainties in Mr. Zidan’s evidence and failed to appreciate that on Mr. Zidan’s evidence, he was knowingly purchasing stolen property from the appellant and was therefore an accomplice. The appellant argues that it was incumbent on the trial judge to give herself a clear warning against relying on Mr. Zidan’s evidence in the absence of corroboration. In other words, the appellant submits the trial judge was required to give herself a “Vetrovec” caution: see R. v. Vetrovec, [1982] 1 S.C.R. 811.

[19] I cannot accept the appellant’s arguments. First of all, a judge conducting a judge-alone trial is not obliged to give herself a “Vetrovec” caution with respect to witnesses who could well attract that caution in a jury case. The “Vetrovec” caution is designed to educate jurors about the risks inherent in accepting the evidence of certain kinds of witnesses and the need to carefully examine the entire trial record for potential supporting evidence. Trial judges are well aware of those risks and the need to look for supporting evidence: R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at paras. 23-25; R. v. KRR, 2020 ABCA 475, 398 C.C.C. (3d) 259, at paras. 56-58.

[20] Trial judges must, however, consider a witness’s involvement in the criminal activity in issue. The trial judge appreciated that Mr. Zidan may, at some point in his dealings with the appellant, have turned a “blind eye” to the provenance of the items being sold to him by the appellant. Although the trial judge did not go so far as to find as a fact that Mr. Zidan knew the items were stolen, she approached his evidence on the basis that there was a real possibility he was wilfully blind to the origin of at least some of the property.

[21] It was the trial judge’s job to decide what Mr. Zidan did or did not know about the source of the property sold to him by the appellant and to take that assessment into account when weighing Mr. Zidan’s credibility. The trial judge did that.

[22] I also cannot agree the trial judge did not adequately address the substance of Mr. Zidan’s evidence. She referred to different parts of his testimony as they related to different counts when she was reviewing each count. She appreciated that Mr. Zidan admitted some uncertainty as to whether certain property came to him from the appellant. That uncertainty contributed to the appellant’s acquittal on one count (count 31).

[23] The trial judge acknowledged that much of Mr. Zidan’s evidence was unconfirmed, in that no one else testified to the transactions between the appellant and Mr. Zidan. There was, however, an important exception to the absence of any confirmatory evidence. As the trial judge noted, on three of the break-in counts (counts 32, 33 and 34), the appellant was found in possession of property obtained from those break-ins after his arrest. His possession of items stolen in those break-ins offered potentially strong confirmation of Mr. Zidan’s evidence that it was the appellant who sold him other property obtained in those same three break-ins.

[24] I see no error in the trial judge’s assessment of Mr. Zidan’s evidence. The break and enter charges, which rely in part on his testimony but do not depend on cross-count similar act evidence, should stand.

B. The Trial Judge’s Ruling on the Cross-Count Similar Act Evidence

[25] In her ruling, the trial judge began with a thorough review of the controlling caselaw. She identified several similarities in the time, place and manner in which the break-ins were committed. These included the close proximity in time and place of many of the break-ins, the relatively brief time period over which all of the break-ins occurred, the character of the neighbourhoods in which the break-ins occurred, the time of day and the days of the week on which the break-ins occurred, the manner in which the burglar gained entry to the homes, and the nature of the property stolen. The trial judge was, however, not satisfied that what she described as these “general commonalities” were enough to render evidence on one of the break and enter counts admissible as evidence of identity on the other break and enter counts.

[26] The trial judge went on to examine the rest of the evidence relating to the break-ins. On the 12 break and enters which she held were admissible as count-to-count similar act evidence, the trial judge identified two additional features of the evidence which satisfied her that the evidence on each count was sufficiently probative of the identity of the burglar on the other counts to warrant its admission as similar act evidence.

[27] First, the trial judge referred to the evidence pertaining to several of the break-ins linking the perpetrator to a four-door white Honda Civic with certain distinctive features. Second, the trial judge referred to the video surveillance and eyewitness evidence describing the perpetrator of several of the break-ins in terms suggesting the perpetrator was the same person. Those descriptions related not only to the physical appearance of the perpetrator, but also the clothing worn by him and the bag the perpetrator was carrying when he committed some of the break-ins.

[28] On some of the 12 break-ins, which the trial judge determined were admissible as count-to-count similar act evidence, there was evidence pertaining to both the white Honda Civic and the description of the perpetrator. On other break-ins, there was evidence pertaining to the vehicle or the description of the perpetrator.

[29] Taking into account the evidence relating to the Honda Civic and the description of the perpetrator, the trial judge concluded, at para. 57:

These details now considered in addition to the general commonalities discussed earlier, specifically the method of entry in this context offer a constellation of evidence which speaks to the manner in which the acts were committed. This body of evidence on these counts is reasonably capable of belief and all share more specific commonalities and links to each other and to a person, raising the probability that these offences were committed by the same person.

[30] Having determined the evidence had substantial probative value on the issue of identity, the trial judge went on to consider the potential prejudice flowing from the admission of the evidence as cross-count similar act evidence. She concluded the risk of prejudice was low. I do not propose to address this aspect of her reasons as I do not understand the appellant to take issue with the trial judge’s calculation on the prejudice side of the admissibility ledger. The appellant’s submissions focus on the finding that the evidence had sufficient probative value to justify its admission.

[31] The appellant challenges the cross-count similar act ruling on essentially one ground. He submits the trial judge failed to maintain the important distinction between evidence of the manner in which the offences were committed and evidence linking the appellant to individual break-ins when deciding whether the similarities in the evidence relating to the 12 counts justified cross-count admissibility on the issue of identity. Counsel argues that only evidence going to the manner in which the break-ins were committed can be properly considered in assessing the probative value of the proffered similar act evidence on the issue of identity.

[32] Counsel argues that had the trial judge limited herself to evidence of the manner in which the offences were committed, she would have been left only with the evidence of the “general commonalities”. The trial judge acknowledged those “general commonalities” could not justify the admission of the evidence as cross-count similar act evidence on the issue of identity.

[33] Counsel focuses on the trial judge’s reliance on the evidence connecting the four-door white Honda to many of the break-ins and the evidence of the similar descriptions of the perpetrator provided in respect of several of the break-ins. Counsel contends this evidence may have connected the appellant to one or more of the break-ins, but it did not offer any support for the conclusion that the acts referred to in respect of each break-in were sufficiently similar to support the inference that the break-ins were committed by a single person.

[34] The trial judge was alive to the distinction between evidence going to the similarity of the manner in which the break-ins were committed and evidence which connected the accused to one or more of the break-ins. She specifically referred to R. v. Arp, [1998] 3 S.C.R. 339, at para. 50, where the court said:

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.

[35] The trial judge also applied Arp on two occasions to identify evidence which, while relevant to the accused’s involvement in the break and enters, did not assist in determining whether the acts were sufficiently similar to warrant their admission as cross-count similar act evidence. First, the trial judge referred to Mr. Zidan’s evidence connecting the appellant to property stolen in some of the break-ins. She said that evidence could not assist the Crown in demonstrating the similarity among the various break-ins, although it clearly connected the appellant to some of those break-ins. Next, the trial judge held that the evidence placing the appellant in possession of property stolen in several of the break-ins also could not assist the Crown in showing the similarity among the various break-ins. As with Mr. Zidan’s evidence, the evidence putting the appellant in possession of the stolen property, while connecting him to the break-ins, said nothing about any similarities in how the break-ins were committed.

[36] The distinction between similarities in the acts advanced as similar act evidence and evidence connecting the accused to those acts is well-established in the caselaw: see R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at paras. 21-23. The distinction is particularly important where the similar act evidence is offered on the issue of identity: see R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at paras. 101-102. Both are relevant to admissibility. Other acts which are not sufficiently similar to the act constituting the charge in issue cannot support the inference the acts were committed by the same person. Absent that inference, the evidence has no probative value as similar act evidence going to identity. Similarly, other acts that may be strongly suggestive of a common actor have no relevance unless there is evidence connecting the accused to those acts: Arp, at paras. 53-54; Durant, at paras. 87-91.

[37] I accept the appellant’s submission that in considering similarities for the purpose of determining admissibility of similar act evidence on the issue of identity, the focus should be on the manner in which the offences were committed. However, I think the appellant takes a much too narrow view of the kind of evidence that can be taken into account when considering the manner in which the offences were committed. Similarities which are relevant to admissibility as similar act evidence on the issue of identity go well beyond the strict actus reus of the offence. The requisite similarities may be found in the “details” of the offences said to constitute similar act evidence, or “the circumstances surrounding or relating to” the alleged similar acts: R. v. Bent, 2016 ONCA 651, 342 C.C.C. (3d) 343, at para. 42.

[38] The evidence placing the distinctive four-door white Honda Civic at or near the scene of many of the break-ins and connecting that vehicle to the perpetrator of some of the break-ins, falls easily within the category of a “circumstance” or “detail” relating to the commission of those offences. I have no difficulty with the concept that the means by which a burglar gets to and from the scene of the burglary is part of the manner in which the crime was committed.

[39] Apart from the evidence connecting the four-door white Honda Civic to several of the break-ins, there was other evidence connecting the white Honda Civic to the appellant. He regularly used the vehicle, which was owned by his girlfriend. That evidence, while not helpful in determining the similarities among the various break-ins, was relevant to the admissibility of the evidence as similar fact evidence in that it connected the appellant to the break-ins through his access to and use of the white Honda Civic. Both the evidence connecting the appellant to the white Honda Civic and the evidence connecting the white Honda Civic to many of the break-ins were relevant to the Crown’s application to use the evidence on individual break and enter counts as similar act evidence on other break and enter counts.

[40] The evidence describing the perpetrator was also capable of supporting the inference that the same person committed the various break-ins. In the context of the similar act evidence application, the primary significance of that evidence was not any similarity between the description of the perpetrator and the appellant’s appearance, but rather the similarities in the description of the perpetrator of the various break and enters.

[41] The description of the perpetrator, as captured on video and provided by witnesses, could, considered in the context of the totality of the evidence, add considerable force to the inference that the individual being described or captured on video at the various break-ins was one and the same person regardless of who that person might be.

[42] The evidence connecting the white Honda Civic to many of the break-ins and the description evidence supporting the inference that the perpetrator of the various break-ins was the same person were both properly taken into account in determining whether it was open to the trial judge to conclude that the perpetrator of the break-ins was the same person. The evidence considered as a whole provided a reasonable basis upon which the trial judge could conclude that the many similarities among the break-ins made it likely that the same person committed the break and enters: Arp, at para. 48.

[43] The trial judge did not err in holding that evidence relating to each of the 12 counts was admissible on the other 11 counts in that group as similar act evidence going to the issue of the identity of the perpetrator of the break-ins.

C. The Trial Judge’s Ruling on the Admissibility of the Toronto Robberies as Similar Act Evidence

[44] In 2012 the appellant pled guilty to five home invasion robberies committed in Toronto in 2011. The Crown submitted that there were significant similarities between the manner in which the victims of the Toronto robberies were assaulted, confined and robbed and the manner in which the victim of the Black Sage Crescent break-in (count 12) was assaulted, confined and robbed (counts 9-11).

[45] The facts underlying the Toronto robberies were taken from the trial judge’s reasons for sentence on those charges. [2] The trial judge concluded that the similarities between the Black Sage Crescent robbery and the Toronto robberies justified the admission of the evidence relating to the Toronto offences on the Black Sage Crescent charges. The appellant contends that the similarities identified by the trial judge are largely generic. He also contends the trial judge failed to consider obvious dissimilarities.

[46] In determining whether the evidence of the Toronto robberies was properly admitted it is important to emphasize the limited purpose for which the Crown sought to lead that evidence. The Crown relied on the evidence of the Toronto robberies to prove the identity of the person who assaulted, confined and robbed the victim of the Black Sage Crescent break and enter. The Crown did not rely on the evidence of the Toronto robberies as evidence of the identity of the perpetrator of the Black Sage Crescent break-in. The Crown did rely on the count-to-count similar act evidence as evidence identifying the perpetrator of the Black Sage residence break-in. As indicated above, I am satisfied the trial judge properly ruled that the count-to-count similar act evidence was admissible as evidence identifying the appellant as the perpetrator of the Black Sage Crescent break-in.

[47] The probative value and the potential prejudicial effect of the evidence of the Toronto robberies must be evaluated in light of the narrow issue on which the evidence was admitted. The Crown did not tender the evidence in support of the position that the appellant broke into the Black Sage Crescent residence, but only to support the contention that while in the residence he assaulted, confined and robbed the victim. The trial judge properly treated the admissibility of the Toronto robberies as secondary to the determination of the count-to-count similar fact evidence application.

[48] The similarities identified by the trial judge gave the evidence of the Toronto robberies some probative value on the issue of the identity of the person who assaulted, confined and robbed the victim of the Black Sage Crescent break-in. That probative value had to be weighed against the potential prejudicial effect flowing from the admission of the evidence. The Crown had to demonstrate on the balance of probabilities that the probative value outweighed the potential prejudice: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.

[49] I accept that the potential probative value of the evidence of the Toronto robberies was not overwhelming. However, I see little if any potential prejudice to the appellant as a consequence of admitting that evidence. It is unrealistic to suggest the trial judge may have resorted to prohibited propensity reasoning based on the Toronto robberies when on the evidence before her she could easily draw the legitimate and much more powerful inference that, as the perpetrator of the break-in, the appellant must have been the person who assaulted and robbed the victim. The availability of that obvious and powerful inference makes it highly unlikely the trial judge would have resorted to fact-finding based on improper propensity reasoning: R. v. J.C., 2021 ONCA 787, at para. 80.

[50] There was also no realistic possibility of any reasoning prejudice flowing from the admission of the evidence of the Toronto robberies. That evidence was neither complicated nor time consuming. The manner in which the evidence was placed before the trial judge and the position of the appellant at trial diminished the risk of any confusion or distraction. The appellant did not challenge his guilt on the Toronto offences or the particulars of those charges, thereby reducing the risk of any reasoning prejudice caused by a proliferation of peripheral issues.

[51] Finally, it is well understood that any risk of prejudice, either moral or reasoning, is attenuated if the trial is before a judge sitting without a jury: R. v. Norris, 2020 ONCA 847, 398 C.C.C. (3d) 1, at para. 24; R. v. T.B., 2009 ONCA 177, 243 C.C.C. (3d) 158, at paras. 28-31.

[52] A trial judge’s finding that similar act evidence should be admitted ultimately comes down to a balancing of the probative value of the evidence against the potential prejudicial effect of that evidence. If the trial judge identifies the proper principles engaged by that balancing, deference is owed to her conclusion: Handy, at para. 153; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73.

[53] I see no error in the trial judge’s admission of the evidence pertaining to the Toronto robberies as evidence identifying the appellant as the person who assaulted, confined and robbed the victim of the Black Sage Crescent break-in.

D. The Sentence Appeal

[54] The appellant acknowledges the deference owed to the trial judge on sentencing. He submits, however, that the trial judge failed to properly apply the principle of totality and that a sentence in the 10-year range would have been appropriate.

[55] The trial judge did consider totality, indicating at para. 27 of the Reasons for Sentence:

It is particularly important when considering consecutive or concurrent sentences for multiple offences to ensure the cumulative of the sentence is proportionate to the circumstances of the offender and of the offences. The cumulative sentence must not be crushing or exceeding the overall culpability of the offender.

[56] The trial judge determined that 15 years did not exceed “the overall culpability of the offender”. She made no reversible error in so holding. As the trial judge accurately observed, “[i]t is difficult to find mitigation for Mr. Fuller.”

[57] The appellant went on a crime spree in Toronto in 2011 that was very similar to the crime spree in Ottawa in 2018-2019. He eventually received sentences totalling nine years for offences committed during the Toronto crime spree. Before he had completed that sentence, and while he was on parole, the appellant committed the many offences that are the subject of this appeal. It would not appear that the nine-year sentence imposed on the appellant in 2012 had any deterrent effect.

[58] The offences committed by the appellant, especially the crimes associated with the Black Sage Crescent break-in, were very serious and had a profound negative impact on the victims. These offences merited substantial sentences. The sentences imposed by the trial judge properly reflected the seriousness of the many crimes the appellant committed and his criminal antecedents. At the same time, the trial judge mitigated the total sentence to reflect the principle of totality.

[59] The total sentence imposed was fit.

E. Conclusion

[60] The conviction appeal is dismissed. Leave to appeal sentence is granted and the appeal is allowed, but only to the extent of removing the victim fine surcharge.

Released: December 14, 2021 “J.M.F.” “Doherty J.A.” “I agree. Fairburn A.C.J.O.” “I agree. David Watt J.A.”

Footnotes:

[1] The appellant’s cellphone did not ping off a cell tower within two to three kilometres during the timeframe of the break-in charged in count 31. For this reason and others, the trial judge acquitted on this count.

[2] The parties appear to have agreed that the Crown could tender evidence of the Toronto robberies by way of the transcript of the trial judge’s findings of fact on sentence. No objection was taken on appeal to the manner in which the facts relating to the Toronto robberies were placed before the trial judge on the similar act application. Counsel for the appellant did however submit that the manner in which the evidence was put before the trial judge resulted in a significant lack of detail which should have weighed against the probative value of the evidence and its ultimate admissibility as similar fact evidence.