DATE: 20011227 DOCKET: C33721

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) v. NEVIN OSBORNE (Respondents)

BEFORE: McMURTRY C.J.O., ROSENBERG and MacPHERSON JJ.A.

COUNSEL:

Sandy Tse, for the appellant

Jean-Pierre Quintal, for the respondent

HEARD: December 20, 2001

RELEASED ORALLY: December 20, 2001

On appeal from the order of Justice E. R. Millette dated May 6, 1998.

E N D O R S E M E N T

[1] The Crown concedes that if the ruling on similar fact evidence is affirmed then there is no basis for interfering with the severance ruling. We have not been persuaded that the trial judge erred in law in holding that the similar fact evidence was inadmissible. As McLachlin J. said in R. v. B.(C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, "Where the law accords a large degree of discretion to a trial judge, courts of appeal are reluctant to interfere with the exercise of that discretion in the absence of a demonstrated error of law or jurisdiction." We can find no such error.

[2] The trial judge applied the test in R. v. B.(L.), (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.). While he also referred to striking similarities, this was the basis upon which Crown counsel at trial (not Mr. Tse) put the case in favour of admission of the evidence. Crown counsel at trial stated that, if the similarities were not striking enough, the prejudice would be too great and the evidence would prove no more than propensity. Given that identity was in issue, the judge was right to require a high degree of similarity. The value of the evidence and the weight to be attached to the similarities and dissimilarities was principally a matter for the trial judge.

[3] While one or the other of us might well have admitted the evidence, we are not prepared to interfere with the conclusion of a trial judge who was charged with the task of weighing the probative value of the evidence against its prejudicial effect in the context of the case as a whole. See B.(C.R.) at para. 43, per McLachlin J.

[4] While some of the evidence given by the respondent might well have altered the probative value versus prejudicial effect assessment, Crown counsel did not renew his application to admit the evidence at trial. It was not suggested that the trial judge should, on his own motion, have raised the issue.

[5] Accordingly, the appeal is dismissed.

(signed) "R. Roy McMurtry C.J.O."

(signed) "M. Rosenberg J.A."

(signed) "J. C. MacPherson J.A."