Her Majesty the Queen v. Paul [Indexed as: R. v. Paul]

62 O.R. (3d) 617

[2002] O.J. No. 4733

Docket No. C33448

Court of Appeal for Ontario,

Laskin, Feldman and Armstrong JJ.A.

December 11, 2002

Criminal law -- Evidence -- Similar fact evidence -- Identity -- Accused convicted of first degree murder -- Deceased's strangled body found in stairwell of accused's apartment building where deceased had been canvassing -- Trial judge admitted evidence that accused had sexually assaulted and choked prostitute four years earlier as similar fact evidence to establish identity of accused as deceased's killer -- Accused's appeal from conviction allowed -- Similar fact evidence inadmissible unless its probative value outweighs its prejudicial effect -- [page618] High degree of similarity required where similar fact evidence is tendered to establish identity -- Similarity must be such as to render likelihood of coincidence objectively improbable -- No such high degree of similarity existed in this case -- Evidence should have been excluded as highly prejudicial to accused -- New trial ordered.

Criminal law -- Charge to jury -- Reasonable doubt -- Trial taking place almost two years after Lifchus but failing to follow suggested wording -- Jurors not told that reasonable doubt closer to absolute certainty than balance of probabilities -- Jurors instructed that reasonable doubt not fanciful doubt conjured up by timid juror -- Preferable to avoid timid juror reference and to comply with Lifchus -- Charge as whole would not have misled jurors regarding burden of proof.

The accused was charged with first degree murder. The deceased's body was found in the stairwell of an apartment building where she had been canvassing for a newspaper. The cause of death was manual strangulation. The police investigation focused on the accused, a resident of the apartment building, when they discovered that he had been convicted four years earlier of the sexual assault and choking of a prostitute, S. S got into the accused's car after agreeing to provide oral sex for money. The accused choked S and punched her in the throat. She passed out, but managed to escape from the car when she regained consciousness. The trial judge permitted the Crown to lead S's evidence at trial. The evidence was admitted on the basis that it met the test of admissibility for similar fact evidence and was probative of the identity of the accused as the deceased's killer. The trial judge held that the circumstances supported a conclusion that oral sex was forced on the deceased against her will and that her death by strangulation was part of a pattern of violence strikingly similar to that experienced by S. The trial judge noted that both assaults were committed in private, away from scrutiny; both were related to oral sex; both showed extreme violence and choking to the point of unconsciousness; both were assaults on unaccompanied women who were soliciting in public for commercial gain; and both victims were vulnerable to a sexually aggressive predator. The accused was convicted. He appealed.

Held, the appeal should be allowed.

Similar fact evidence is generally inadmissible unless its probative value outweighs its prejudicial effect. Probative value will be found to exceed prejudice where the force of similar circumstances defies coincidence or other innocent explanation. When it is tendered for the purpose of proving the identity of the accused, as in this case, the trial judge must find a high degree of similarity between the alleged similar acts of the accused and the conduct which forms the subject matter of the charge. In this case, the facts of the accused's involvement with S were either not similar at all or so general in their similar characteristics that they were of no more than marginal probative value, and any probative value that they might have was far outweighed by their prejudicial effect. What was known of the deceased's death was removed in time, place and circumstance from the accused's involvement with S four years earlier. If the assault on the deceased in fact occurred in private, which was not established, there was nothing probative about this fact, as most sexual assaults of this nature occur in private. The degree to which oral sex was a factor in the attack on the deceased was not clear. The alleged similarity on the basis that both victims were unaccompanied women soliciting in public for commercial gain and vulnerable to a sexually aggressive predator was remote in the extreme and had no probative value. The pathologist who conducted the autopsy on the deceased's body found nothing particularly unusual about the combination of blunt trauma and manual strangulation, and [page619] testified that it is commonly combined in the case of female victims. It could not be inferred from the degree of distinctness or uniqueness that existed between the commission of the crime and the alleged similar act that the accused was the very person who committed the crime. Such an inference was only possible if the high degree of similarity between the acts rendered the likelihood of coincidence objectively improbable. The evidence in this case fell far short of passing such a test. The alleged similar fact evidence was little more than evidence of propensity and should have been excluded as highly prejudicial to the accused.

The Crown argued that the other circumstantial evidence was so compelling that the verdict would necessarily have been the same despite the error in relation to a similar act. In particular, the Crown relied on the evidence of two small stains on the deceased's clothing that were consistent with the accused's DNA. However, given the highly prejudicial nature of the similar fact evidence, this was not an appropriate case for the application of the proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.

APPEAL from a conviction for first degree murder. [page620]

R. v. Arp, [1998] 3 S.C.R. 339, 58 B.C.L.R. (3d) 18, 166 D.L.R. (4th) 296, 232 N.R. 317, [1999] 5 W.W.R. 545, 129 C.C.C. (3d) 321, 20 C.R. (5th) 1; R. v. B. (L.), R. v. G. (M.A.) (1997), 35 O.R. (3d) 35, 116 C.C.C. (3d) 481, 9 C.R. (5th) 38 (C.A.); R. v. Handy, 2002 SCC 56, 213 D.L.R. (4th) 385, 290 N.R. 1, 164 C.C.C. (3d) 481, 1 C.R. (6th) 203 (sub nom. R. v. H. (J.)), apld Other cases referred to Makin v. Attorney General for New South Wales, [1891-4] All E.R. Rep. 24, [1894] A.C. 57, 63 L.J.P.C. 41, 69 L.T. 778, 58 J.P. 148, 10 T.L.R. 155, 17 Cox C.C. 704, G.R. 373 (P.C.); R. v. Abbey, [1982] 2 S.C.R. 24, 39 B.C.L.R. 201, 138 D.L.R. (3d) 202, 43 N.R. 30, [1983] 1 W.W.R. 251, 68 C.C.C. (2d) 394, 29 C.R. (3d) 193; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, 195 Nfld. & P.E.I.R. 338, 192 D.L.R. (4th) 596, 262 N.R. 96, 586 A.P.R. 338, 149 C.C.C. (3d) 77, 38 C.R. (5th) 26 (sub nom. R. v. Avetysan (A.)); R. v. B. (C.R.), [1990] 1 S.C.R. 717, 73 Alta. L.R. (2d) 1, 107 N.R. 241, [1990] 3 W.W.R. 385, 55 C.C.C. (3d) 1, 76 C.R. (3d) 1; R. v. Beauchamp, 2000 SCC 54, [2000] 2 S.C.R. 720, 192 D.L.R. (4th) 577, 262 N.R. 119, 149 C.C.C. (3d) 58, 38 C.R. (5th) 11; R. v. Dickinson (1984), 40 C.R. (3d) 384, 40 O.A.C. 45 (C.A.); R. v. Karthiresu (2000), 129 O.A.C. 291 (C.A.); R. v. Lavallee, [1990] 1 S.C.R. 852, 67 Man. R. (2d) 1, 108 N.R. 321, [1990] 4 W.W.R. 1, 55 C.C.C. (3d) 97, 76 C.R. (3d) 329; R. v. Lifchus, [1997] 3 S.C.R. 320, 118 Man. R. (2d) 218, 150 D.L.R. (4th) 733, 216 N.R. 215, 149 W.A.C. 218, [1997] 10 W.W.R. 570, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1; R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731, 87 Alta. L.R. (3d) 1, 192 D.L.R. (4th) 585, 261 N.R. 339, [2001] 2 W.W.R. 407, 149 C.C.C. (3d) 66, 38 C.R. (5th) 1 (sub nom. R. v. Russell (M.E.)); R. v. Scopelliti (1981), 34 O.R. (2d) 524, 63 C.C.C. (2d) 481 (C.A.); R. v. Shearing, 2002 SCC 58, 2 B.C.L.R. (3d) 201, 214 D.L.R. (4th) 215, 290 N.R. 225, [2002] 8 W.W.R. 395, 165 C.C.C. (3d) 225, 2 C.R. (6th) 213; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1; R. v. Warren, [1999] O.J. No. 4555 (Quicklaw) (C.A.); Rhee v. R., 2001 SCC 71, [2001] 3 S.C.R. 364, 96 B.C.L.R. (3d) 224, 204 D.L.R. (4th) 618, 275 N.R. 281, [2002] 1 W.W.R. 409, 158 C.C.C. (3d) 129, 46 C.R. (5th) 233 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii)

Shawn Porter, for respondent. Keith E. Wright, for appellant.

The judgment of the court was delivered by

[1] ARMSTRONG J.A.: -- The appellant appeals his conviction for first degree murder. He raises the following grounds of appeal:

(i) the trial judge erred in admitting similar fact evidence and erred in his charge to the jury in regard to that evidence;

(ii) the trial judge erred in his charge to the jury on reasonable doubt;

(iii) the trial judge erred in permitting the respondent to lead inadmissible hearsay evidence through its DNA expert witnesses;

(iv) the trial judge erred in his charge to the jury on the DNA evidence; and

(v) the trial judge erred in responding to a question posed by the jury in regard to the DNA evidence.

In my view, the trial judge did err in admitting similar fact evidence. I would therefore allow the appeal and order a new trial for the reasons which follow.

The Facts

[2] In the late afternoon of March 4, 1998, Christine Ricketts and Peter Gibson, salespersons for the Toronto Star, were engaged in the canvass of an apartment building in the City of Toronto.

[3] Before they began the canvass, they agreed that Ricketts would cover the even numbered floors and Gibson would cover the odd numbered floors. They commenced the canvass at the top of the building. Whoever finished first was to begin canvassing the floors of the other person from the ground floor up.

[4] Ricketts apparently completed her canvass of the even numbered floors and began to work on the odd numbered floors. She eventually met Gibson on the fifth floor. Together they descended to the lobby floor where they canvassed the apartments on the lobby floor together. They met again in the lobby and Gibson said he would canvass the superintendent's apartment and then they would leave together. This was about 4:50 p.m. When [page621] Gibson returned to the lobby, Ms. Ricketts was no longer there. Gibson waited for her in the lobby and then went to an adjacent apartment building to look for her. He returned to the original building and searched the halls of that building from the ninth floor up. He called Ms. Ricketts' cell phone and home phone and received no response. He continued to search for her until about 8:00 p.m. without success.

[5] The police were notified of Ms. Ricketts' disappearance and they began making phone calls to area hospitals but with negative results. In the early morning hours of March 5, 1998, a police officer in the company of the building superintendent searched the building where Ms. Ricketts had been canvassing. On the landing of the fifth floor stairwell, they discovered her dead body. The building superintendent had done his rounds of the building, including the stairwells, at about 9:00 p.m. and had found nothing out of the ordinary at that time.

[6] The pathologist who conducted the autopsy on the body of Ms. Ricketts concluded that the cause of death was manual strangulation. There was also evidence that Ms. Ricketts had suffered a physical beating prior to the strangulation.

[7] The pathologist testified that he would have expected "cast-off blood spatters" at the scene of the attack, as well as possibly some "dripping blood". There was no such evidence where the body was found except for a blood smear. The trial proceeded on the basis that the attack on Ms. Ricketts had occurred elsewhere and her body had been moved later to the fifth floor stairwell.

[8] The pathologist found no evidence of pubic hair in Ms. Ricketts' mouth or on her face. He saw no evidence of semen, and none was detected by a laser test. There was no injury to her mouth which could be attributed to the forced insertion of a penis. During the autopsy, the throat was opened and examined, and there was no indication therein of pubic hair or semen, even upon microscopic examination. Her stomach contents were examined and no evidence of pubic hair or semen was found. The medical examiner examined Ms. Ricketts' breasts and vaginal area and found no evidence of any injury let alone any sexual type of injury. He found no evidence of a sexual assault, even though he recognized that as a possibility.

[9] The pathologist testified that he had performed about 4,000 autopsies, of which about 460 were homicides. In his experience, blunt trauma is commonly combined with manual strangulation, especially in the case of female victims, and so he found "nothing particularly unusual" about the combination in this case.

[10] On the morning of March 6, 1998 a police check was done on the occupants of the apartment building and it was discovered [page622] that the appellant, who lived in apartment 601, had been convicted four years earlier of sexual assault and choking of a prostitute. Apartment 601 is located directly across the hall from the door which leads to the stairwell where the victim's body was found. From that point forward, the police focused their investigation on the appellant.

[11] A search of the appellant's apartment was conducted pursuant to a search warrant. Four hairs were found in a vacuum cleaner bag and one hair in a carpet which were said to be dyed in a similar fashion to the hairs in the wig of the victim. In the opinion of a hair analyst, the hairs could have originated from the wig of Ms. Ricketts or another wig of the same type of manufacture. The latter evidence, which was inconclusive, did not play a major part in the trial. Indeed, the Crown at trial conceded that no conviction could be founded on the hair analysis evidence. Nothing of significance was found in the apartment of the appellant and certainly nothing which could connect the appellant to the deceased.

[12] The appellant told the police that he was in his apartment between 3:30 p.m. and 10:30 p.m. on the day in question. Although this time period covered the time frame of the canvass by Ms. Ricketts, he denied that she had attended his apartment. The occupant of a neighbouring apartment on the sixth floor testified that Ms. Ricketts canvassed his apartment between 3:00 and 4:00 p.m.

[13] The appellant was followed by two police officers to a shopping mall where they recovered two paper cups and a straw from which the appellant had consumed a drink. Scientists at the Centre of Forensic Sciences were able to obtain a sample of his DNA from the straw. After the appellant was arrested, a further sample of his DNA was obtained.

[14] Laboratory analysis of stains on Ms. Ricketts' clothing revealed small amounts of saliva and sperm. The results of DNA testing were admitted in evidence at trial and were the subject of much detailed examination and cross-examination by counsel.

[15] Analysis was carried out in regard to a red shirt worn by Ms. Ricketts. Through microscopic examination a single sperm cell was detected in a stain on the shirt which suggested that there were small numbers of spermatozoa present in the stain. The stain also included saliva from Ms. Ricketts. A DNA profile was obtained of the spermatozoa and compared with the known DNA profile of the appellant. The scientific question then asked was whether the appellant could be excluded as a possible donor of the sperm DNA, to which the answer was no, according to the scientist at the Centre of Forensic Sciences. The frequency of [page623] occurrence of the appellant's profile and of the profile of the spermatozoa that was on the red shirt was said to be one in 58,000 of the Caucasian population. According to the scientist's evidence, more than 99.99 per cent of the population was thereby excluded as the donor of the sperm.

[16] A second scientist from the Centre of Forensic Sciences testified that a stain on a pink coat worn by Ms. Ricketts also contained a mixture of saliva and spermatozoa. The DNA profile of the saliva matched the DNA profile of Ms. Ricketts. An analysis of the DNA profile from the spermatozoa failed to exclude the appellant. The witness further testified that the appellant was one of the people who could have left the spermatozoa on the pink coat. She also testified that the frequency of occurrence of the profile of the appellant and of the profile of the spermatozoa found on the pink coat is one in 870,000 of the population.

[17] As already noted, the DNA evidence was subject to a detailed and vigorous challenge by way of cross-examination. The defence raised a number of issues concerning this evidence and its reliability, including possible contamination of the exhibits and the erroneous interpretation of the test results.

[18] The defence also called expert evidence from a urologist, who called into question a conclusion of the scientist from the Centre of Forensic Sciences that he had observed under microscope two sperm cells on the clothing of Ms. Ricketts.

The Theory of the Crown

[19] The case against the appellant was entirely circumstantial. The theory of the Crown was that the appellant had lured Ms. Ricketts to a private area in the building, likely his apartment, where he forced her to perform oral sex, assaulted her and ultimately killed her by manual strangulation, later depositing her body in the stairwell.

(i) The similar fact evidence

[20] The Crown led the evidence of a former prostitute who had been assaulted by the appellant four years prior to the events giving rise to the case at bar. The evidence was admitted by the trial judge on the basis that it met the test of admissibility for similar fact evidence and was probative of the identity of the appellant as the killer of Ms. Ricketts.

[21] The former prostitute, S, was walking on Gerrard Street in Toronto between Church and Jarvis Streets at about 1:15 a.m. on June 27, 1994. A white car pulled along beside her and she asked the driver if he would spend $100 for oral sex. The driver of [page624] the car was the appellant and he agreed. She advised him that he would need an additional $50 for a hotel room. He said he did not need a hotel room as he lived in an apartment a few blocks north on Sherbourne Street. S got into the car. They proceeded north to Sherbourne and just past Bloor Street the appellant pulled into a driveway and then backed up and parked on the street. He suggested that the agreed act of prostitution should be performed in the car instead of going upstairs to his nearby apartment in order to save time. S agreed.

[22] S then requested her fee of $100 from the appellant and he responded by asking"How about a freebie?". She declined. When he persisted, S attempted to get out of the car. He grabbed her by the back of the neck with one hand and put his other hand over her mouth and said, if she screamed, he was going to kill her. He then began to choke her with his hands around her throat and pushed her head into his crotch. He shouted obscenities at her and punched her in the throat. He then started "digging" into her bra with one hand while the other hand was on her throat. (S thought he was trying to steal her money which she kept in her bra.) She was punched in the throat a second time and then blacked out.

[23] When S recovered consciousness, she was still in the car with the seat belt, which had not previously been attached, fastened about her. They were driving north on Sherbourne Street. She managed at that point to escape from the car. She suffered a variety of bruises and scratches.

[24] As a result of seeing the same car, with the appellant driving, in the same area on two subsequent occasions within the next few months, S was able to get the number on the licence plate, which led to the appellant's arrest. He was ultimately convicted at trial of, inter alia, choking and sexual assault.

Ruling of the trial judge on the similar fact evidence

[25] The trial judge reviewed the law on similar fact evidence including cases in this court, the Supreme Court of Canada and the House of Lords. He also reviewed the circumstantial evidence against the appellant in the case at bar and its alleged similarity to the evidence of the appellant's attack on the former prostitute. In admitting the evidence of the former prostitute, he concluded:

Christine Ricketts was killed by manual strangulation. She was also subjected to violent and blunt force assault. The DNA evidence supports the conclusion that she was involved in oral sex with the defendant.

The circumstances support a conclusion that the oral sex was forced against her will and that her death by strangulation was part of a pattern of violence [page625] strikingly similar to that experienced by the prostitute, S. Both assaults were committed in private away from scrutiny. Both were related to oral sex. Both showed extreme violence and choking to the point of unconsciousness. In the Ricketts case, it was fatal. Both were assaults on unaccompanied women who were soliciting in public for commercial gain. Both were vulnerable to a sexually aggressive predator. The similarities are more than enough to support a conclusion that it was a pattern of conduct.

There is no doubt about the link between the defendant and S. She identified him. He was tried and convicted of assaulting her. There is a strong link between the defendant and Ms. Ricketts. There is strong evidence that [she] called at [his] apartment around 4:00 p.m. on March 4 when he admitted he was home. He denied that she had called.

Her body was found in the stairwell only a few feet away from his apartment. It is conceded that she was killed elsewhere and her body was taken to the stairwell. The proximity of the stairwell to his apartment is a significant fact. Also there is substantial circumstantial evidence to support an inference that there was a significant link between the defendant and Ms. Ricketts.

I concluded that the evidence of the 1994 event bore striking similarities to the circumstances surrounding the death of Ms. Ricketts. It has very compelling probative value on the issue of the identity of the defendant as the killer of Ms. Ricketts.

The similar fact evidence rule

[26] As Charron J.A. of this court pointed out in R. v. B. (L.), R. v. G. (M.A.) (1997), 35 O.R. (3d) 35, 116 C.C.C. (3d) 481 (C.A.) the similar fact evidence rule has been the subject of much judicial pronouncement in recent years. Two more judgments of the Supreme Court of Canada on the rule were released after we heard argument in this case: R. v. Handy, 2002 SCC 56, 213 D.L.R. (4th) 385, and R. v. Shearing, 2002 SCC 58, 214 D.L.R. (4th) 215. What emerges from all the authorities is that the rule is easy to articulate but often difficult to apply.

[27] Justice Charron in R. v. B. (L.), supra, at pp. 41-42 O.R., p. 489 C.C.C. articulated the rule as follows:

In a nutshell, the similar fact evidence rule can be stated as follows: evidence of discreditable conduct of the accused, sought to be introduced by the prosecution, will be inadmissible except when its probative value outweighs its prejudicial effect.

[28] Binnie J., in Handy, supra, at para. 55, described the rule in the following terms:

Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge 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. [page626]

[29] All those who, over the years, have considered the similar fact evidence rule, whether judges or academics, have drawn attention to the danger of the trier of fact treating similar fact evidence as evidence of propensity. As Lord Herschell stated more than a century ago in Makin v. Attorney General for New South Wales, [1891-4] All E.R. Rep. 24, [1894] A.C. 57 (P.C.) at p. 65 A.C.: such evidence cannot be led to establish ". . . that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried".

[30] Binnie J. in Handy, supra, at para. 138, referred to the "poisonous potential of similar fact evidence" in the following words:

The poisonous potential of similar fact evidence cannot be doubted. Sopinka, Lederman and Bryant, supra, at 11.173, refer to the observations of an English barrister who has written of that jurisdiction:

Similar fact evidence poses enormous problems for Judges, jurors and magistrates alike. The reason for this is the headlong conflict between probative force and prejudicial effect. Often, in the Crown Court, it is as close as a Judge comes to single-handedly deciding the outcome of a case. [Emphasis added by Binnie J.]

(G. Durston"Similar Fact Evidence: A Guide for the Perplexed in the Light of Recent Cases" (1996), 160 Justice of the Peace Journal & Local Government Law 359, p. 359)

[31] When can it be said that the probative value of similar fact evidence outweighs its prejudicial effect? In Handy, supra, at para. 47, Binnie J. stated that"[p]robative value exceeds prejudice because the force of similar circumstances defies coincidence or other innocent explanations". In Shearing, supra, at para. 40, Binnie J. also postulated that"[t]he theory of similar fact evidence turns largely on the improbability of coincidence." See also R. v. B. (C.R.), [1990] 1 S.C.R. 717, 55 C.C.C. (3d) 1, per Sopinka J., dissenting, at p. 751 S.C.R.

The similar fact evidence rule where identity is the issue

[32] When similar fact evidence is tendered for the purpose of proving the identity of the accused, as in the case at bar, it is said that the trial judge must find a high degree of similarity between the alleged similar acts of the accused and the conduct which forms the subject matter of the alleged charge. Cory J. discussed the identity issue in R. v. Arp, [1998] 3 S.C.R. 339, 166 D.L.R. (4th) 296 at para. 43:

It follows that where identity is at issue in a criminal case and the accused is shown to have committed acts which bear a striking similarity to the alleged crime, the jury is not asked to infer from the accused's habits or disposition that he is the type of person who would commit the crime. Instead, the jury is asked to infer from the degree of distinctiveness or uniqueness [page627] that exists between the commission of the crime and the similar act that the accused is the very person who committed the crime. This inference is made possible only if the high degree of similarity between the acts renders the likelihood of coincidence objectively improbable. See Hoch v. The Queen (1988), 165 C.L.R. 292 (Aust. H.C.). That is, there is always a possibility that by coincidence the perpetrator of the crime and the accused share certain predilections or that the accused may become implicated in crimes for which he is not responsible. However, where the evidence shows a distinct pattern to the acts in question, the possibility that the accused would repeatedly be implicated in strikingly similar offences purely as a matter of coincidence is greatly reduced. Sopinka J. in Morin, supra, where similar fact evidence was used to prove identity, made this point clear (at p. 367):

In similar fact cases it is not sufficient to establish that the accused is a member of an abnormal group with the same propensities as the perpetrator. There must be some further distinguishing feature. Accordingly, if the crime was committed by someone with homosexual tendencies, it is not sufficient to establish that the accused is a practising homosexual or indeed has engaged in numerous homosexual acts. The tendered evidence must tend to show that there was some striking similarity between the manner in which the perpetrator committed the criminal act and such evidence.

[33] In Handy, Binnie J. confirmed the approach taken by Cory J. in Arp, and by Martin J.A. of this court in R. v. Scopelliti (1981), 34 O.R. (2d) 524, 63 C.C.C. (2d) 481 (C.A.) at p. 538 O.R., p. 496 C.C.C. who said that similar fact evidence on the issue of identity is not admissible "unless the propensity is so highly distinctive or unique as to constitute a signature". Although the issue in Handy was not the identity of the accused, the following observation by Binnie J. at para. 79 is instructive:

If, for example, the complainant in this case had not been able to identify the respondent as the perpetrator of the alleged offence, the conduct described by the ex-wife was not so 'particular and distinctive' as to amount to a 'signature' or 'fingerprints at the scene of the crime' that would safely differentiate him from other possible assailants.

The application of the similar fact evidence rule to the case at bar

[34] Counsel for the appellant submitted before us that the trial judge misapplied the judgment of Cory J. in Arp. He argued that the high degree of similarity required by Arp simply was not present in this case.

[35] Counsel for the respondent accepted that where similar fact evidence is adduced to prove identity, a high degree of similarity between the manner in which the alleged similar acts were committed is generally required. He cited a judgment of Martin J.A. of this court in R. v. Dickinson (1984), 40 C.R. (3d) 384, 40 O.A.C. 45 (C.A.) at p. 389 C.R., where he said: [page628]

Where similar fact evidence is required to bear the whole burden of connecting the accused with the crime charged, obviously a very high degree of similarity is required.

Counsel then submitted that a lesser degree of similarity will suffice where other evidence tending to establish that an accused is the perpetrator of the crime exists. In this regard, he relied on the DNA evidence harvested from the clothing of Ms. Ricketts, the proximity of her body to the appellant's apartment and the likelihood that she called at the apartment around 4:00 p.m.

[36] Support for the respondent's position can be found in the judgment of this court in R. v. Warren, [1999] O.J. No. 4555 (Quicklaw) (C.A.) at para. 5.

[37] While accepting, without deciding, that this may be a case where a lesser degree of similarity is called for, it should be noted that the trial judge did not proceed on that basis. Indeed, he proceeded to find striking similarity between the appellant's encounter with S and the circumstances surrounding the death of Ms. Ricketts. That said, in my view, the facts of the appellant's involvement with S, which are alleged to be similar or strikingly similar are either not similar at all or are so general in their similar characteristics that they are of no more than marginal probative value. What probative value there may be in the circumstances involving the appellant with S is far outweighed by their prejudicial effect.

[38] In the case at bar, what is known of the tragic death of Ms. Ricketts is removed in time, place and circumstance from the appellant's involvement with S four years earlier.

[39] The trial judge in his ruling observed that the assault on S and the assault on Ms. Ricketts occurred in private. While virtually nothing is known of where the assault of Ms. Ricketts occurred, even if it is reasonable to conclude that it occurred in private, there is nothing of probative value in that fact. I think it is safe to say that the majority of sexual assaults of this nature occur in private. The trial judge commented that both were related to oral sex. Again almost nothing is known about the circumstances of the attack on Ms. Ricketts and the degree to which oral sex was or was not a factor. What we do know is that S was a prostitute picked up on the street in the middle of the night for the purpose of providing oral sex to the appellant some four years before the death of Ms. Ricketts. The circumstances of Ms. Ricketts' attendance at the apartment building on the afternoon of March 5, 1998 had no similar characteristics.

[40] The trial judge found similarity on the basis that"Both were assaults on unaccompanied women who were soliciting in public for commercial gain. Both were vulnerable to a sexually [page629] aggressive predator." With respect, this alleged similarity is remote in the extreme and, in my view, has no probative value.

[41] Finally, the trial judge commented that"Both [assaults] showed extreme physical violence and choking to the point of unconsciousness." In considering this observation, I return to the evidence of the pathologist who conducted the autopsy on the body of Ms. Ricketts. The pathologist said that he found nothing particularly unusual about the combination of blunt trauma and manual strangulation. Indeed, he testified that it is commonly combined in the case of female victims.

[42] In disposing of this issue, I find the judgment of Cory J. in Arp particularly helpful. Can it be inferred from the degree of distinctness or uniqueness that exists between the commission of the crime and the alleged similar act that the appellant is the very person who committed the crime? As Cory J. said in Arp, such an inference is only possible if the high degree of similarity between the acts renders the likelihood of coincidence objectively improbable. In my view, the evidence in this case falls far short of passing such a test.

[43] In reaching this conclusion, I am mindful that the application of the similar fact evidence rule is within the province of the trial judge and is not to be lightly set aside by an appellate court. However, in this case, my analysis leads me to conclude that the alleged similar fact evidence is little more than evidence of propensity and should have been excluded as highly prejudicial to the appellant.

The charge to the jury on similar fact evidence

[44] Counsel for the appellant submitted that the trial judge failed to instruct the jury properly on the manner in which they were to determine the likelihood that the two offences were committed by the same person. Since I have decided that the similar fact evidence ought not to have been admitted, it is not necessary to consider this ground of appeal.

(ii) The charge to the jury on reasonable doubt

[45] Counsel for the appellant submitted that the trial judge's charge on reasonable doubt failed to measure up to the standard required by the Supreme Court of Canada in such cases as R. v. Lifchus, [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1 and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 147 C.C.C. (3d) 449.

[46] The charge on the presumption of innocence and reasonable doubt was as follows:

You will recall that I gave you some preliminary instructions as to general principles of law that apply in any criminal case. [page630]

The first of those is what is known as the presumption of innocence. Anyone who is charged with a criminal offence under our system comes before the court presumed to be innocent. There is no onus on an accused person to prove innocence. That is presumed. The onus is on the accuser to prove the guilt of the accused -- in this case, the accusation is brought in the name of the Crown, so the onus is on the Crown to prove the guilt of the accused and to prove that guilt beyond a reasonable doubt. That onus is on the prosecution and it never shifts.

Proof beyond a reasonable doubt: What is it? One would think that the term "reasonable doubt" is self explanatory, but it does require some explanation.

As I told you earlier, a reasonable doubt is an honest doubt. It is a doubt based on reason and common sense. It is not based on any bias or sympathy for or against anyone. It is not a fanciful doubt conjured up in the minds of a timid juror to avoid doing an unpleasant task. Reasonable doubt can be found in the evidence or the lack of evidence or the weakness of evidence, if that be the case.

The prosecution does not have to prove guilt to an absolute or mathematical certainty because that degree of proof is rarely achieved in human affairs.

Proof beyond a reasonable doubt has been achieved when each of you as conscientious jurors are sure of the guilt of the accused. It is that degree of proof which satisfies the conscience and convinces the mind so that you feel bound or compelled to act upon it and find the accused guilty.

If, on the other hand, you as conscientious jurors are left in a state of nagging or lingering doubt that the prosecution has failed to prove an essential element of the offence beyond a reasonable doubt, then it would be your duty to acquit the accused and find him not guilty.

[47] The trial judge made other references to reasonable doubt in the other sections of his charge. There was no objection to the charge on reasonable doubt. The following day, the jury asked: "Can the jury please have the definition of reasonable doubt as described in Your Honour's charge to the jury reread." The judge recharged the jury in substantially identical language to his initial charge on reasonable doubt. There was no objection to the recharge.

[48] The charge, which followed the Supreme Court's judgment in Lifchus by nearly two years, does not comply with the suggested charge in that case. The charge raises the issue articulated in Starr, at para. 239, per Iacobucci J.:

The key difficulty with this instruction is that it was not made clear to the jury that the Crown was required to do more than prove the appellant's guilt on a balance of probabilities. The trial judge told the jury that they could convict on the basis of something less than absolute certainty of guilt, but did not explain, in essence, how much less.

[49] The trial judge also told the jury that a reasonable doubt". . . is not a fanciful doubt conjured up in the minds of a timid juror to avoid doing an unpleasant task". This language was criticized by this court in R. v. Karthiresu (2000), 129 O.A.C. 291 (C.A.) at p. 293. [page631] As was said in that case, it can be argued that such instruction may carry the implication that jurors who acquit are timid and may be avoiding their responsibilities, while courageous jurors convict. However, it should be noted that the charge in this case pre-dated Karthiresu.

[50] The Supreme Court of Canada has held that failure to comply with one or more of the elements of the suggested charge in Lifchus is not necessarily a basis for finding reversible error on the part of the trial judge. This point was underscored in three judgments of the court released simultaneously in R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, 149 C.C.C. (3d) 77, R. v. Beauchamp, 2000 SCC 54, [2000] 2 S.C.R. 720, 149 C.C.C. (3d) 58 and R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731, 149 C.C.C. (3d) 66. See also Rhee v. R., 2001 SCC 71, [2001] 3 S.C.R. 364, 158 C.C.C. (3d) 129.

[51] Iacobucci J. stated in Russell at para. 21 that "the instructions given by the trial judge must be considered as a whole, and in the overall context of the case, to determine whether there is substantial compliance with Lifchus." In Avetysan, Major J. held at para. 12 that the basic question remains: "Does the charge, read as a whole, give rise to a reasonable likelihood that the jury misapprehended the correct standard of proof? If not, the charge is adequate."

[52] In my view, it would have been preferable for the trial judge to have told the jury that the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probability. However, the charge contained the following words which, I believe, lift the standard beyond a balance of probabilities and closer to absolute certainty:

Proof beyond a reasonable doubt has been achieved when each of you as conscientious jurors are sure of the guilt of the accused. It is that degree of proof which satisfies the conscience and convinces the mind so that you feel bound or compelled to act upon it and find the accused guilty.

[53] The appellant also argued that the trial judge failed to link reasonable doubt with the presumption of innocence. I disagree. In my view, his initial charge was sufficient for that purpose and his failure to repeat it in his recharge was not fatal, particularly when there was no objection.

[54] I am, therefore, of the opinion that the judge's charge in this case is in substantial compliance with Lifchus.

(iii) The DNA expert evidence - its hearsay nature

[55] The appellant alleged that the trial judge erred in permitting the Crown's two expert witnesses on DNA to support their opinions by claims that other experts, who did not testify, [page632] reviewed their opinions and agreed with their conclusions. Each of the two witnesses described a verification process at the Centre of Forensic Sciences whereby their reports were reviewed by other scientists who approved their conclusions before they were released. The appellant argued that such evidence was inadmissible hearsay.

[56] It is well settled that expert witnesses are entitled to rely on hearsay evidence in the formulation of their opinions and it then becomes a question of what weight is attached to such evidence by the trier of fact. See R. v. Abbey, [1982] 2 S.C.R. 24, 68 C.C.C. (2d) 394; R. v. Lavallee, [1990] 1 S.C.R. 852, 55 C.C.C. (3d) 97, at pp. 892-93 S.C.R., p. 127 C.C.C.

[57] In the case at bar, the two Crown witnesses appear to have gone further than simply relying upon hearsay evidence in the formulation of their opinions. Here the witnesses did not rely on hearsay evidence in the formulation of their opinions but, as counsel for the appellant put it in his factum, sought to augment the weight of their opinions by relying on the confirming opinions of other experts whose expertise was never established, and whose supplementary supportive evidence was never heard or tested in court. In effect, they were bootstrapping their own evidence by referring to other persons who had reviewed the entirety of their evidence and agreed with it.

[58] While I would have been inclined to give effect to this submission by the appellant, I decline to do so for two reasons. First, no objection was made by counsel for the appellant at trial (who was not the counsel on this appeal). Second, and more important, counsel for the appellant at trial employed the same tactics (although to a lesser degree) in his cross-examination of the Crown witnesses but for the purpose of discrediting the evidence. For example, he asked one of the witnesses whether he had consulted with anyone about his interpretation of particular data. Also, presumably for the purpose of illustrating the fallibility of the Centre of Forensic Sciences, he cross-examined the second DNA expert about a serious mistake made in another case which, he pointed out, had not been caught in the review procedure.

[59] In these circumstances, I find it difficult to give effect to an objection that was never made, in respect to a similar tactic, which was employed by the counsel for the appellant at trial.

(iv) The jury charge on the DNA evidence

[60] Counsel for the appellant submitted that the trial judge erred in his charge to the jury in regard to the use that could be made of the DNA evidence. He argued that he erred in failing to [page633] advise the jury that, to the extent that an expert relies upon hearsay evidence, his opinion is of diminished weight. In particular, he complained that the trial judge had invited the jury to rely on the hearsay evidence of the review process. Counsel for the respondent conceded it might have been preferable if the trial judge had included a discussion of the hearsay dangers associated with a scientific witness's reliance upon work done by others. However, he submitted that the omission did not prejudice the appellant as this aspect of the jury charge also applied to the expert evidence led by counsel for the appellant. It should also be noted that no objection was made to this aspect of the judge's charge by counsel at trial. While it may have been preferable for the trial judge to tell the jury that the expert evidence in this case does not gain strength by reference to other experts' opinions, I am not persuaded in the circumstances here that this court should intervene.

[61] Counsel for the appellant further submitted that the charge to the jury on the expert evidence in general was defective. His complaint was that the trial judge failed to explain to the jury the proper role of an expert witness in providing opinion evidence. While the trial judge told the jury that they were not required to accept the expert evidence, counsel for the appellant complained that the trial judge was in error when he qualified his instruction with the words: "if the expert's evidence is something that you consider has any weaknesses or is in any way in conflict with your own understanding". While the latter part of this instruction could give rise to some confusion when read in isolation, I do not think it supports an argument in favour of reversible error.

[62] The appellant also argued that the trial judge erred in his instruction to the effect that if no other witness challenged the evidence of an expert, then it was likely that the jury would accept the evidence of the expert. However, this instruction was immediately followed by the words:

In assessing the evidence of the expert witness, you can also take into account what the opinion was and how it stood up when it was tested in cross-examination. That, of course, is the purpose of cross-examination, to test the strength and validity of the evidence of the witness who is being cross- examined.

In my view, the reference to the cross-examination of the experts took away the possible suggestion that unless there was evidence to the contrary led through other witnesses, they should accept the evidence of the Crown's expert witnesses. I am, therefore, not persuaded that the trial judge fell into reversible error on this issue. [page634]

(v) The judge's reply to the jury's question on the DNA evidence

[63] The jury made the following request in regard to the DNA evidence:

The jury is having difficulty interpreting the DNA evidence, particularly the numerical counts and a contentious interpretation of shoulders, pull-ups and stutters. The application of this information as presented by Mr. Newman and Ms. Newell to Mr. Paul's DNA profile requires further clarification.

[64] There was a discussion between the bench and counsel as to the scope of this request. Appellant's counsel referred the judge to general areas which he submitted were relevant to the concerns of the jury. Counsel for the Crown suggested that the question might have been formulated more broadly than the jury actually had intended and suggested that the judge ask the jury to be more specific in its question.

[65] Upon recalling the jury, the judge said he would attempt to answer the question but that if his recharge was not responsive to their concerns, they could request further instructions in greater detail. After his recharge, there was a specific objection from counsel for the appellant which resulted in a further brief recharge. During the course of his recharge, the judge emphasized that if the jury had a specific concern or if they wished a detailed review of all of the evidence in relation to the DNA evidence, then that could be accomplished the following morning. The jury left the courtroom at 8:54 p.m. and stopped deliberating at 9:30 p.m. without any further requests for instructions on the DNA evidence.

[66] There was no objection to the approach taken by the trial judge. In my opinion, the trial judge approached the request in a sensible way and made it clear to the jury that he was prepared to give them all the further help they needed if so requested. I am not able to find that the trial judge committed any error in his recharge to the jury on the DNA evidence.

The Application of the Proviso

[67] Counsel for the respondent relied on s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 in the event that the court concluded that the similar fact evidence should not have been admitted, and requested that we dismiss the appeal in any event. In my view, given the highly prejudicial nature of the similar fact evidence, this is not an appropriate case to apply the proviso. [page635]

Conclusion

[68] The trial judge erred in admitting the similar fact evidence. I would not give effect to the other grounds of appeal. In the result, I would set aside the conviction and order a new trial.

Appeal allowed.