Court File and Parties

Court File No.: Halton Region 12-1266 Date: March 20, 2014 Ontario Court of Justice

Between: Her Majesty the Queen — and — Mark Anthony Scida

Before: Justice Roselyn Zisman

Heard on: March 17, 2014

Reasons for Ruling released on: March 20, 2014

Counsel:

• Arish Khoorshed for the Crown
• Rudy Covre for the accused Mark Scida

Reasons for Ruling on Motion to Admit Evidence of Discreditable Conduct Evidence

ZISMAN, J.:

Introduction

[1] This is a pre-trial motion by the Crown to admit evidence of prior conduct against the defendant Mark Scida. Mr. Scida is charged along with two other defendants with various counts relating to the theft of and possession of stolen construction equipment with a value of over $5,000.00. As the motion only pertained to Mr. Scida the other defendants and their counsel did not participate in the motion.

[2] Counsel for the defendant, Mr. Scida opposes the admission of this evidence.

Factual Background

[3] The allegations are that three John Deere loaders each valued in excess of $100,000 were stolen from three different construction sites during the months of August to October 2011.

[4] The Crown submits that evidence will be adduced at trial, through cell phone records of the co-accused, to show that they were in the vicinity of the thefts within the time-frames of each theft and that they then travelled to the location of Mr. Scida's property, where the stolen property was found by police and recovered. Mr. Scida is also charged with the possession of a stolen Wacker generator that was also located on his property.

[5] The Crown also submits that evidence adduced at trial, through cell phone records, will show that one of the co-accused was in constant communication with Mr. Scida at the times when it will be alleged that these thefts took place.

[6] The Crown submits that the main issue or at least a very significant issue to be determined at trial, with respect to Mr. Scida, is whether or not he was aware that the loaders, backhoe and generator in his possession were stolen. He points out that this type of equipment is used by Mr. Scida in his businesses.

[7] The Crown seeks to introduce evidence that Mr. Scida was previously charged with possession of stolen property despite the fact that all of the charges were withdrawn.

[8] Those prior occurrences are as follows:

a) On December 11, 2008, a CASE skid steer was reported stolen from a construction site at 100 Maintosh Blvd. in Vaughan and on the same day was located in the backyard of the home address of Mark Scida. Mr. Scida was charged with possession of stolen property valued at over $5,000. The charges were later withdrawn;

b) On April 20, 2009 an orange Kobota was reported stolen from the vicinity of Kerby and Huntington in Vaughan. On May 28, 2009 the police located three pieces of construction equipment at a property owned by Mr. Scida namely, the orange Kubota, another Kobota mini excavator and a CASE skid steer. Mr. Scida was charged with three counts of possession of stolen property valued at over $5,000. These charges were ultimately withdrawn; and

c) On May 16, 2009 a CASE skid steer loader was reported stolen from 940 Nashville Road in Vaughan. The occurrence report filed in support of this motion does not specify the exact location of the recovery of this property or how it is tied to Mr. Scida. However, he was charged with its possession and that charge was also ultimately withdrawn.

[9] Defence counsel did not dispute the basic allegations as outlined by the Crown nor the fact that Mr. Scida had been previously charged and that all of the charges were withdrawn. He did question whether or not there were two or three prior occurrences as they relate a the possession of a stolen CASE skid steer but it appeared from a closer scrutiny of the occurrence reports that there were two different CASE skid steers that had been reported stolen from different construction sites.

[10] Defence counsel also submitted that the offences were not similar and do not therefore meet the criteria for admission. He submitted that the evidence will show that Mr. Scida did not have exclusive possession of the land where the alleged stolen property was found whereas in the charges that related to the prior occurrences, he was the sole owner of the property where the stolen items were found.

[11] Defence counsel did not challenge the authorities and the Crown's submissions as to the law as set out in his factum. Both counsel filed briefs of authorities.

Legal Principles Relating to Admission of Prior Discreditable Conduct

[12] The Supreme Court of Canada in R. v. Handy developed a principled approach for the admissibility of evidence of prior discreditable conduct. Such evidence is presumptively inadmissible if it is intended to only show that the accused is the type of person likely to have committed the offence in question. However, there are exceptions as stated by Binnie, J. in Handy, at para. 41:

While emphasizing the general rule of exclusion, courts have recognized that an issue may arise in the trial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse.

[13] The onus is on the Crown to prove on a balance of probabilities that, in the context of the particular case, the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.

[14] For such evidence to become admissible it must therefore satisfy two criteria. Firstly, it must be relevant to an issue in the trial and secondly, its probative value must outweigh its potential for prejudice.

[15] As stated in R. v. B.(L.) by Charron J.A., as she then was:

This threshold test for admissibility is not any different where the Crown seeks to introduce evidence of the accused's conduct other than that which forms the subject-matter of the charge. Despite the label, "similar fact evidence", usually attached to this type of evidence, the initial inquiry is not about the degree of similarity between the other conduct and the conduct for which the accused stands trial. Rather, it is about relevance and materiality. Generally, this basic threshold of relevance and materiality can be tested by asking what inference is sought to be made from the proposed evidence and whether it has some tendency to advance the inquiry before the court.

[16] Accordingly, the prior discreditable conduct may have a probative value even where it is not strikingly similar to the alleged offence. In assessing the probative value of the evidence, the court should consider:

a) the strength of the evidence;

b) the extent to which the evidence supports inferences to be made; and

c) the extent to which the matters it tends to prove are in issue in the trial.

[17] Such evidence can be admitted on the basis of an objective improbability of coincidence. A principled approach to the admission of similar fact evidence will in all cases rest on the finding that an accused's involvement in the alleged similar acts or counts is unlikely to be the product of coincidence.

[18] It is on this basis that courts have admitted prior evidence of acquittals where it is relevant to the ultimate issue in a subsequent trial. As stated in R.v. Arp at para. 78:

The principle enunciated in Grdic is fundamental to our system of justice. It seeks to ensure that an accused need not repeatedly defend himself against the same allegations. Nevertheless, in certain circumstances, the fact of an accused's prior acquittal may have relevance to an ultimate issue in a subsequent trial. For example, in R. v. Ollis, [1900] 2 Q.B. 758, the accused was charged with obtaining money by false pretences. He had obtained funds in exchange for a cheque that was later dishonoured. The accused was acquitted at his first trial on the basis that when he gave the cheque to the complainant, he expected to receive funds to cover it. The accused was later again indicted with obtaining money by false pretences, and at his second trial the Crown adduced the evidence of the first complainant as relevant to the accused's guilty state of mind. The court held that the evidence was properly admissible. As Widgery J. stated in G. (an infant) v. Coltart, [1967] 1 All E.R. 271 (Q.B.), at p. 276:

. . . it may well happen that evidence relating to the charge giving rise to the acquittal will be called on the subsequent charge, but, if it is so called, it will be called because it has relevance to the subsequent charge quite independently of any question whether the accused was guilty or innocent on the first charge.

[19] In assessing whether the probative value of the evidence outweighs the risk of prejudice, as explained in Handy, the court should consider the "moral prejudice" that is, that the accused is a bad person deserving of punishment in any event and the "reasoning prejudice" that is, that the proposed evidence is disputed and that the time and effort to establish the disputed facts could reasonably create a distraction so great that the value of the evidence diminishes accordingly.

Applicability of Legal Principles to the Facts in This Case

[20] The Crown seeks to admit the evidence of Mr. Scida's prior discreditable conduct for the narrow purpose to dispute a defence of ignorance or sloppiness and argue that any blindness to the fact the construction equipment was not legitimate was wilful blindness for someone with Mr. Scida's past experience. The Crown submits that it will argue at trial that anyone who had been previously arrested and charged with possession of stolen property would be expected to be scrupulous in ensuring that he had the proper ownership documents when purchasing or possessing this type of equipment and would be in a position to produce such paperwork.

[21] The Crown submits that the "fact in issue" is whether or not Mr. Scida was willfully blind or blind at all, to the illegitimate nature of the four stolen pieces of equipment found on his property.

[22] Counsel for Mr. Scida did not dispute that this would be an issue in the trial but rather submitted that the prior charges were withdrawn against Mr. Scida presumably on the basis that the Crown determined that there was not a reasonable prospect of conviction.

[23] I would agree that the evidence would not be admissible if the Crown were attempting to proffer this evidence to prove that the Mr. Scida was more likely to have known that the equipment was stolen because he had previously been found in possession of stolen property or if the Crown were trying prove that Mr. Scida was in fact guilty of the prior offences. But that is not the purpose for which this evidence is being sought to be admitted.

[24] I also agree with the Crown that the strength of the evidence is reliable in that, it is not anticipated that Mr. Scida will dispute that he was previously found in possession of stolen pieces of equipment, that he was charged and that the charges were withdrawn.

[25] Both counsel agreed that if the evidence was admitted they expected that an agreed statement of fact would be prepared as to these facts and that no further witnesses would be called at trial with respect to this evidence.

[26] I find that there although there are significant similarities between the prior charges and the charges now before the court with respect to the nature of the equipment, I accept the submission of counsel for Mr. Scida that the evidence will show that there are differences. It is submitted that with respect to the prior charges, Mr. Scida was in exclusive possession of the land upon which the equipment was found and in this case, the defendant will provide evidence that Mr. Scida rented the property to a third party. However, as pointed put by the Crown, the Criminal Code does not require a person to be found in exclusive possession of stolen property to be found guilty of being in possession of stolen property. It is further submitted that the prior charges are not proximate in time to the alleged offences before the court. I find that a span of three to four years is not so far in time to diminish the relevance of the proffered evidence.

[27] Further, as previously outlined, the case law supports the proposition that it is not necessary for there to be exact similarities as it depends on the purpose for which the evidence is being tendered. In this case it is for a very limited purpose with respect to the expectation that having been previously accused of a similar crime, Mr. Scida would be on heightened alert about the legitimacy of any equipment he purchased or had in his possession.

[28] Defence counsel agreed with the Crown's submissions that in a judge alone trial, the risk of either moral or reasoned prejudice is greatly reduced. As stated by Borins, J.A. in R. v. B.(T) at paras. 27, 28 and 33:

[27] As the proposed similar fact evidence in this case was related to all the counts in the indictment and the evidence was already before the court, and because this was a non-jury trial, reasoning prejudice was not a real issue. Unlike cases such as Handy, this was not a case where the proposed similar fact evidence was extrinsic to the charges before the court and required extra witnesses to present it. The only additional time needed as a result of the similar fact evidence was the time required to argue the motion to admit it. As trial judges are presumed to know the law and the proper and improper uses of evidence, it seems counterintuitive that similar fact evidence could be excluded in a non-jury trial based on the trial judge's determination that the evidence would confuse him or induce him to put more weight on it than is logically justified.

[28] In his lecture entitled "Similar Fact Evidence" in Special Lectures 2003: The Law of Evidence (Toronto: Irwin Law, 2004), Rosenberg J.A. wrote, at p. 414:

The similar fact rule is very much driven by the jury system and the danger that laypersons will give undue weight to frail but highly prejudicial evidence. A similar view was expressed by this court in R. v. W. (L.), [2004] O.J. No. 4163, 191 O.A.C. 22 (C.A.), at para. 9:

It is important to keep in mind that the risk of prejudice was much reduced because of the fact that this was a trial by judge alone...

[33] ….this was a non-jury trial, in which the danger that an accused would be convicted solely on the basis of his general bad behaviour was not a significant concern. Moral prejudice is not a significant risk in a judge-alone trial.

[29] In summary, I find that the evidence the Crown seeks to admit is relevant and probative to a live issue in this trial namely, Mr. Scida's state of mind as a result of having been previously charged with similar offences that he was willfully blind to the legitimacy of the equipment found on his property.

[30] Defence counsel submits that there is no foundation to the Crown's position as the evidence at trial will show that Mr. Scida did not purchase the equipment in question and the question will be why would he be on alert to a third party purchasing the equipment. At the present time I am unaware of the nature of the evidence that will be led at trial or all of the potential defences that will be proffered. If at the conclusion of the trial, the Crown has been unable to prove that Mr. Scida was in possession of the stolen equipment then the evidence of his prior charges will not be relevant.

[31] As previously indicated and as conceded by Defence counsel, there is a diminished risk of prejudice to Mr. Scida in admitting this evidence in a judge alone trial.

[32] I find that the Crown has met the onus on it, on a balance of probability, for the admission of the prior discreditable conduct of Mr. Scida for the narrow purpose of rebutting the anticipated defence of Mr. Scida that he was unaware or willfully blind to the fact the equipment located on his property was stolen.

Released: March 20, 2014

Signed: "Justice Roselyn Zisman"