DATE: 20030819

DOCKET: C34378

COURT OF APPEAL FOR ONTARIO

CRONK, GILLESE and ARMSTRONG JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

David Finley,

for the respondent

Respondent

• and -

RONALD WOODCOCK

Paula Rochman,

for the appellant

Appellant

Heard: February 18, 2003

On appeal from the convictions entered by Justice Harry LaForme of the Superior Court of Justice, sitting with a jury, on March 20, 1998.

CRONK J.A.:

[1] The appellant was charged on a fifteen count indictment with two counts of first degree murder, four counts of attempted murder, two counts of robbery, and one count each of the offences of discharging a firearm with intent to endanger life, forcible seizure, unlawful use of a firearm, possession of a restricted weapon, wearing a disguise, possession of stolen property, and possession of a prohibited weapon. Following a trial by judge and jury, he was convicted on all counts. The convictions on the charges of discharging a firearm with intent to endanger life, forcible seizure, wearing a disguise, and possession of stolen property were stayed on the basis of R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.

[2] The appellant was sentenced to life imprisonment with no parole eligibility for twenty-five years. He appeals from his convictions.

[3] The appellant was tried jointly with a co-accused, Roshan Norouzali, who was also convicted of two counts of first degree murder and numerous other offences. Norouzali also appeals from his convictions. The two appeals were heard together and reasons for judgment in both appeals are being released contemporaneously.

I. OVERVIEW

[4] All charges against the appellant stem from two incidents on September 14, 1994. Ken Thomas was killed and his car was stolen on that day. He was shot four times with a .22 calibre rifle, once in the back of the neck and three times through the left side of his head. His body was discovered approximately four months later, on January 21, 1995, inside a perimeter fence at the Pickering Nuclear Generating Station.

[5] It was the Crown’s theory at trial that the appellant and Norouzali murdered Thomas and then used the victim’s car that same day to rob Gagnon Sporting Goods Store (“Gagnons”), a hunting and fishing supply store in Oshawa. The robbery of Gagnons was carried out by two masked men. During the course of the robbery, one of the perpetrators fired six shots from the same .22 calibre gun that had been used to kill Thomas, killing one person and wounding three others. The second perpetrator smashed a display case and took eleven handguns, including a Colt .45 calibre firearm (the “Colt”) and a Ruger model .45 calibre handgun (the “Ruger”). No money was stolen.

[6] The appellant, Norouzali, and a third person, Deryck Thompson, were arrested six months later, on March 10, 1995, after robbing a grocery store in St. Thomas (the “St. Thomas robbery”). On their arrest, Norouzali and Thompson were armed, respectively, with the Colt and the Ruger stolen from Gagnons. The appellant was armed with a .38 calibre handgun. That gun was not linked to Gagnons. The appellant discharged the .38 calibre handgun during the St. Thomas robbery, shooting a customer in the leg. Prior to the trial at issue on this appeal, the appellant, Norouzali and Thompson all pleaded guilty to and were convicted of the St. Thomas robbery and various other charges arising from it.

[7] When booked at the police station following his arrest in connection with the St. Thomas robbery, the appellant described his height as 5’6” and his weight as 150 pounds. He has brown hair and is balding. Norouzali is 5’9” tall and, at the time of booking, weighed 165 pounds. He speaks with a Persian accent. Thompson, a white male, is 5’7” tall and, at the time of booking, weighed 165 pounds.

[8] At the trial at issue on this appeal, the trial judge admitted alleged similar fact evidence concerning the St. Thomas robbery and four additional robberies in London carried out between September 19 and December 22, 1994 (collectively, the “London robberies”).

[9] The Crown’s theory was that this evidence tended to prove the identity of the appellant and Norouzali as the perpetrators of the Gagnons robbery and of the appellant as the shooter during that incident. As the same gun that was used to kill Thomas was used by the shooter at Gagnons, proof of the identity of the perpetrators of the robbery and shootings at Gagnons would connect those persons to Thomas’ murder.

[10] The appellant and Norouzali did not testify at trial. Thompson was called as a witness for the Crown.

[11] In support of his appeal, the appellant argues that the trial judge erred: (a) in admitting the alleged similar fact evidence at trial; (b) in reversing, near the end of the Crown’s case, his earlier ruling following the voir dire that evidence establishing that the appellant shot someone during the St. Thomas robbery was inadmissible; (c) in his instruction to the jury on the doctrine of recent possession; and (d) in his instruction to the jury on reasonable doubt. The appellant does not challenge the trial judge’s instruction to the jury concerning the alleged similar fact evidence; nor does he assert that his convictions were unreasonable.

[12] For the reasons that follow, I conclude that the trial judge erred in admitting two of the incidents of alleged similar fact evidence at issue on this appeal. Accordingly, on that ground, I would allow the appeal, set aside the convictions and order a new trial.

II. FACTS

A. The Murder of Ken Thomas

[13] Ken Thomas was last seen alive on the morning of September 14, 1994. When his body was discovered on January 21, 1995, it was determined that he had been shot four times in the head with a .22 calibre rifle. Expert evidence at trial established that Thomas had been executed at the site where his body was found.

[14] Thomas owned a 1989 Chevrolet Caprice automobile prior to his disappearance. His car was seen parked at Gagnons at about 2:00 p.m. on the day of the Gagnons robbery. It was used as the getaway car for that robbery and was recovered later, a short distance from the store.

B. The Robbery and Shootings at Gagnons

[15] Two men wearing masks or balaclavas entered Gagnons through the front door shortly after 5:00 p.m. on September 14, 1994. One of the men was carrying a .22 calibre rifle. As he entered the store, he yelled: “Okay, this is it. This is a hold-up. Everybody get down.” An employee who did not respond to the robber’s liking was shot in the arm. The sound was muffled by a silencer, as were the subsequent gunshots. The owner of the store, who was on the telephone behind a counter when the assailants entered, told the person on the telephone that a robbery was occurring. The gunman yelled, “I told you to get down and I’m not fuckin’ kidding”, and then shot the owner twice, once in the shoulder and then in the temple. The owner died from his wounds approximately forty minutes later. Two other persons, who made no attempts to resist the robbers, were also shot.

[16] Six shots were fired in total by the same gunman. Six .22 calibre shell casings of Winchester manufacture and five spent bullets were found at the scene. The four victims were all shot with the same .22 calibre firearm, which had previously been used to kill Thomas.

[17] The second assailant smashed a display case containing handguns. He kicked one of the injured victims out of the way to reach the case, and yelled, “Everybody get down. If anybody moves, kill them.” He then took eleven semi-automatic handguns, including the Colt and the Ruger, and put them in a duffel bag.

[18] No money was taken although it was available, no attempt was made to remove cash from the premises, and no one was robbed of valuables. The entire incident took ninety seconds or less.

[19] Although various descriptions of the two robbers were given by several witnesses, no one could identify the appellant or Norouzali. Descriptions of the height of the shooter ranged from 5’4” to 5’9”. He was said to have a thick build and a deep voice, and to be shorter and stockier than the other assailant. The second robber was described as slightly taller and slimmer than the shooter.

[20] Other witnesses, who saw the two men leaving Gagnons, also gave varying descriptions of them at trial. One witness said that both men were 5’10” in height and well-built, weighing approximately 200 pounds each. The driver of the getaway car was described as clean-shaven and white. Another witness described the driver as about 5’7” to 5’8” in height and stockier in build than the passenger. Two other witnesses described the driver as dark, with some greying facial hair.

[21] Ken Thomas’ car, later identified as the getaway car, was retrieved the day after the robbery about one kilometre from Gagnons. Blood found in the vehicle was later matched by DNA analysis to blood found in the shattered display case and to blood found on pants belonging to Norouzali, which were seized upon his arrest on March 10, 1995.

[22] The Crown asserted that the appellant was the shorter and heavier robber at Gagnons, that he was in command or control of that robbery, and that he was the shooter. On the Crown’s theory, based in significant part on the DNA evidence, Norouzali was the second, taller and slimmer robber. No forensic evidence linked the appellant to Gagnons or to Thomas’ car. He was seen with Norouzali in London, however, early in the morning of September 15, 1994, less than sixteen hours after the robbery at Gagnons.

C. The Alleged Similar Fact Evidence

[23] The similar fact evidence tendered by the Crown was essentially unchallenged for the purpose of the voir dire. It may be summarized as follows.

(1) The First London Robbery: September 19, 1994

[24] During the morning of September 19, 1994, a masked assailant entered a Bank of Nova Scotia branch in London shortly before it opened to the public for the day (the “First London robbery”). He gained entry by smashing the glass front door with a brick. He was carrying a .45 calibre handgun, wrapped in a towel, in his left hand. As the bank employees moved towards an exit at the back of the bank, the assailant fired a shot. No one was injured and no money was stolen.

[25] Expert evidence indicated that the Ruger stolen from Gagnons was eliminated as the firearm discharged at this bank. The Colt stolen from Gagnons, however, could neither be eliminated nor linked to this incident. A bullet recovered at the scene was later determined to be .45 calibre “reloaded” ammunition.[^1]

[26] According to witnesses, the assailant appeared to be a black, bearded male who was wearing a red baseball cap. His height was said to range from 5’6” to 5’9”. One witness suggested that the assailant was about 5’0” tall.

[27] After the incident, a bank employee saw a car with one passenger and a driver speeding from the scene. The passenger appeared to be the person who had entered the bank. A passer-by also observed a man get into a white vehicle. She described him as about 5’6” tall, wearing a handkerchief over his face.

[28] The getaway vehicle had been stolen on September 18, 1994. It was recovered a short distance from the bank. The car thief was described by a witness as a thin male, wearing a baseball cap, with long, shoulder-length hair.

(2) The Second London Robbery: November 11, 1994

[29] At approximately 9:10 p.m., shortly after closing time, two men entered Valdi’s grocery store in London by firing two gunshots at the front glass door (the “Second London robbery”). Both men were armed and were wearing blue jeans and balaclavas or ski masks. Witnesses described them both as “about 25” years of age.

[30] The first robber was described by witnesses as 5’6” to 5’7” tall, wearing a red balaclava or ski mask, and having dark, black eyes and white coloured skin. Another witness suggested that he was 5’7” to 5’9” tall. Witnesses described the second man as 5’10” tall and huskier in build than the first man. The second man was wearing a black balaclava and was carrying a black bag.

[31] On entering the store, both men rushed into the office area. The first, shorter man, demanded money from the cash trays and the safe. His voice was said to be low and gruff, giving the appearance of being forced. He had no accent. He was described by witnesses as being in charge of the robbery. The second man did not speak while he was in the store. Approximately $1,000 was taken in this robbery.

[32] Two spent .45 calibre cartridge shells of Winchester manufacture were recovered at the scene, together with two .45 calibre bullets. Two of the cartridges and one of the bullets were later determined to be from the Ruger stolen from Gagnons. The bullets were reloaded ammunition.

[33] An off-duty police officer saw a man wearing dark coloured clothing and carrying a dark duffel bag running from the store. He was seen to be removing a ski mask and was described as 5’8” to 5’9” in height and approximately 180 pounds in weight, with a stocky or sturdy build. A second person was observed by the police officer standing by a vehicle in the store’s parking lot. The car was later determined to be stolen. When the two men entered the vehicle, the police officer pursued it. He noted that the driver was Caucasian or European with “maybe a little bit olive [complexion]” and dark hair.

(3) The Third London Robbery: November 24, 1994

[34] In the mid-afternoon of November 24, 1994, two armed men wearing balaclavas entered the front door of a Toronto-Dominion Bank branch in London (the “Third London robbery”). They arrived about fifteen to twenty minutes after a Brinks truck made a delivery of money to the bank and shortly before a second Brinks truck was scheduled to pick-up the money.

[35] The first robber ordered the people in the bank to the floor. He then fired a single shot from a gun in the direction of a bank employee. Thereafter, he entered the bank vault and said: “This is a Brinks pick-up. I want in this fucking compartment right now. Open it up. I want you to open it up right now.” He was described by witnesses as wearing a dark or black ski mask and knit toque on his head. Descriptions of his height ranged from 5’6” to 5’7” or 5’8”. He was said to have a slight or small build and to weigh approximately 150 to 170 pounds. He had no accent. Witnesses said that he acted aggressively and authoritatively. He gave bank employees thirty seconds to open the bank vault.

[36] The second robber attempted to take money from the tellers’ wickets. He was also wearing a ski mask and toque. He was described as taller and heavier than the first robber. He was said to be about 5’10” to 6’0” tall, weighing about 170 pounds. One witness described the second robber as 5’7” to 5’8” tall. He was also said to have a “distinct accent”, speaking in broken English.

[37] Both men were armed with .45 calibre firearms. Both men fired two shots from their weapons. No one was injured. Four cartridge cases and a number of bullet fragments were recovered from the scene. Two of the cartridge cases were later matched to the Ruger stolen from Gagnons. One of the bullets was matched to the Colt stolen from Gagnons. Reloaded ammunition was used by the robbers.

[38] The assailants left the bank when the bank employees could not open the safe. They made good their escape in a light coloured or grey car which was stolen on November 13, 1994.

(4) The Fourth London Robbery: December 22, 1994

[39] During the early afternoon of December 22, 1994, two armed, hooded men entered a National Grocers store in London through the front door (the “Fourth London robbery”). The first assailant ordered all of the store employees to the floor. He approached a cashier and demanded that the money from the cash register be placed in a flight bag which he had with him. He took approximately $7,000 to $8,000. He then ordered the cashier to the floor. He was described by the cashier as having olive-coloured skin and wearing new, dark blue jeans and a dark grey sweatshirt with the hood pulled up. He was said to be between 5’8” and 5’10” tall. He had a stocky build and was described as weighing approximately 150 pounds. He was also said to have a slight Jamaican or Trinidadian accent.

[40] The second assailant was described by witnesses as slightly shorter than the first assailant, and not as heavy. He was said to be white and wearing a dark sweatshirt or jacket, with a hood covering his head. He went to a second cash register to remove cash from the till.

[41] No gunshots were fired during this robbery; however, ten unfired rounds of .45 calibre ammunition were recovered in an airline flight bag left at the scene. Expert evidence established that three of the cartridges had been reloaded on a reloading press owned by Thompson and his brother.[^2] The press was later seized from Thompson’s brother’s residence.

[42] The assailants fled from the scene in a motor vehicle which was stolen on December 20, 1994.

(5) The St. Thomas Robbery: March 10, 1995

[43] Shortly before 4:00 p.m. on March 10, 1995, the appellant, Norouzali and Thompson entered a National Grocers store in St. Thomas. The appellant was armed with a .38 calibre revolver. Norouzali was armed with a .45 calibre Colt semi-automatic weapon and Thompson was armed with a .45 calibre Ruger semi-automatic firearm. The weapons carried by Norouzali and Thompson were later matched to the Colt and the Ruger stolen from Gagnons. The appellant’s .38 calibre revolver could not be linked to Gagnons or any of the London robberies.

[44] All three men were wearing dark ski masks or balaclavas and gloves. The appellant ordered all of the persons in the store to the floor, stating: “This is a robbery. Everyone down on the floor.” The other perpetrators issued similar commands. The appellant shot a store customer in the leg.

[45] The appellant demanded to know the identity of the store manager. When the manager was identified, the appellant ordered him to the store safe and said: “Open the fucking safe. You’ve got 30 seconds or I’ll shoot.” The appellant removed $13,500 in cash and a series of cheques totalling $46,000 from the safe. The three men then fled. The entire incident lasted about three or four minutes.

[46] Throughout, one of the three robbers stood guard at the door and did not actively engage in the events inside the store. Thompson claimed to have played that role.

[47] The three men were arrested while they were fleeing from the scene in a van which had been stolen by them two days earlier in Toronto. The appellant was driving the vehicle. Norouzali was in the front passenger seat and Thompson was in the rear of the car.

[48] When the appellant was removed from the vehicle, he told a police officer that there were three guns in the car. He said: “I have a .38. They have .45s.” The appellant also admitted to the police officer that he had fired a shot during the robbery.

[49] Subsequently, two baseball caps and a balaclava were seized from the area outside the van and the police executed various search warrants, seizing an array of items from different locations, including a box of .45 calibre ammunition and a bag which contained balaclavas from Norouzali’s car and a reloading device from Thompson’s brother’s residence. During their searches of Thompson’s residence, the police seized three handguns including a .22 calibre handgun, an assortment of ammunition including .38 calibre bullets, a supply of .22 calibre rifle ammunition of Winchester manufacture (the same type of ammunition recovered at Gagnons), a supply of hollow point bullets, a marksmanship certificate, and a device used to speed the loading of bullets into a gun. The items seized from Thompson were in his possession lawfully pursuant to firearms acquisition certificates held by him.

[50] The appellant pleaded guilty in June 1995 to a series of charges arising from the St. Thomas robbery, including aggravated assault, possession of a prohibited firearm, robbery, and wearing a mask with intent to commit an indictable offence.

(6) Thompson’s Evidence on the Voir Dire

[51] For the purpose of the voir dire concerning the admissibility of the similar fact evidence, the Crown also relied on Thompson’s evidence at the preliminary inquiry held in this case.

[52] Thompson is a childhood friend of the appellant. He has a lengthy criminal record dating from 1969, with some crime free years. His record includes convictions for obstructing justice and various charges of theft and breaking and entering. He had not been convicted of armed robbery prior to the St. Thomas robbery. Thompson is an avid hunter, sportsman, gun enthusiast, and a competitive marksman. Prior to March 1995, he owned a large collection of guns and an assortment of ammunition, which he used regularly in competitive shooting and at a gun club. As I earlier mentioned, those items were in his possession lawfully.

[53] During his testimony at the preliminary inquiry, Thompson denied any involvement in Thomas’ killing, the robbery and shootings at Gagnons, and the London robberies. He admitted his participation in the St. Thomas robbery and his convictions on offences arising out of that robbery. He also testified that:

(i) prior to the St. Thomas robbery, he gave the appellant .45 and .357 calibre ammunition from time to time. He did not think that he had provided the appellant with .22 calibre ammunition. The appellant’s common-law spouse made jewellery from gun ammunition;

(ii) Thompson conceived the idea of robbing the National Grocers store in London. He approached the appellant with his plan. He claimed that he met Norouzali in December 1994 or January 1995 but that he did not know him well. Thompson said that Norouzali spoke English with difficulty;

(iii) several days prior to the St. Thomas robbery, the appellant told Thompson that he (the appellant) could purchase or get guns for the robbery;

(iv) shortly before the St. Thomas robbery, Thompson accompanied the appellant and Norouzali to a countryside location, allegedly previously unknown to Thompson. The appellant or Norouzali, or both, went into the woods and returned with a bag containing three guns. Thompson obtained the Ruger from the bag for use in the St. Thomas robbery. He also obtained a balaclava from the appellant or Norouzali, or both; and

(v) the appellant drove the getaway car following the St. Thomas robbery.

D. The Trial Judge’s Rulings on the Admissibility

of the Similar Fact Evidence

[54] The trial judge made three rulings on the alleged similar fact evidence. On February 2, 1998, he ruled that the evidence proffered by the Crown on the voir dire concerning the London and St. Thomas robberies, outlined above, was admissible (the “first ruling”).

[55] Thereafter, following further submissions from the parties, the trial judge ruled on February 6, 1998 that evidence indicating that the appellant shot someone during the St. Thomas robbery was inadmissible. The Crown was permitted, however, to lead evidence that the appellant discharged a firearm during that robbery (the “second ruling”).

[56] Finally, towards the end of the Crown’s case, the Crown requested that the trial judge reconsider aspects of his first and second rulings. In particular, as relevant on this appeal, the Crown requested that the trial judge reconsider his second ruling excluding the evidence that the appellant shot someone during the St. Thomas robbery. On March 5, 1998, the trial judge reversed his second ruling, holding that the Crown was permitted to lead evidence that the appellant had shot someone during the St. Thomas robbery (the “third ruling”).

[57] The appellant challenges the first and third rulings of the trial judge concerning the similar fact evidence. Norouzali does not raise either of the rulings as grounds for his appeal. As appears from the facts which I have set out, the Crown’s case against Norouzali was different than its case against the appellant: it included DNA evidence identifying Norouzali as the second robber at Gagnons who stole the guns from a display case, thereby eliminating him as the shooter in that robbery.

E. The Theory of an Alternate Suspect

[58] It was the defence theory that an alternate suspect, Thompson, was more likely than not to be the Gagnons shooter rather than the appellant. That theory emerged in the defence cross-examinations at trial of the Crown’s witnesses.

[59] Thompson had a corroborated alibi for the Third London robbery (November 24, 1994). Moreover, he testified at trial that he was with the appellant at a hospital visiting a dying friend on the day of the Second London robbery (November 11, 1994), thus potentially providing an alibi for himself and the appellant concerning that robbery. Thompson had no alibi, however, and was uncertain of his whereabouts, on the days of the Gagnons incident (September 14, 1994), the First London robbery (September 19, 1994), and the Fourth London robbery (December 22, 1994).

[60] One of the employees of Gagnons who was present in that store during the robbery knew Thompson from fishing tournaments. He testified at trial that he knew Thompson’s height and voice and that he did not recognize the voice of the Gagnons shooter, thereby suggesting that Thompson was not the shooter. He also said that Thompson had been in Gagnons before September 14, 1994. Thompson denied that.

[61] Thompson was a police suspect during the investigation of the offences relevant to this appeal. In his jury charge, the trial judge instructed the jury to be cautious in accepting Thompson’s testimony and to search for other confirmatory evidence before relying on his evidence alone. The adequacy and propriety of those instructions are not challenged on this appeal. Indeed, Crown counsel concedes that Thompson’s evidence required very careful scrutiny.

III. ANALYSIS

A. The Admissibility of the Similar Fact Evidence

(1) The General Evidentiary Rules

[62] The inadmissibility of general propensity or disposition evidence in a criminal trial has long been established under Canadian law. The general exclusionary rule recognizes that such evidence, although potentially relevant to the ultimate issue of guilt or innocence, poses grave dangers to a fair trial: see R. v. D.(L.E.), 1989 74 (SCC), [1989] 2 S.C.R. 111; R. v. Shearing (2002), 2002 SCC 58, 165 C.C.C. (3d) 225 (S.C.C.) and R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.). In the latter case, Binnie J. referred at para. 37 to the great potential of such evidence “for prejudice, distraction and time consumption” and said, “It ought, in general, to form no part of the case which the accused is called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible [citations omitted].” The serious potential prejudice to the accused arising from the admission of general propensity evidence encompasses both moral prejudice, that is, the stigma of “bad personhood”, and reasoning prejudice, which includes potential confusion and distraction of the jury from the actual charge or charges against the accused: Handy at para. 100, per Binnie J. and Shearing, at pp. 249-50, per Binnie J.

[63] Nonetheless, evidence showing a specific propensity is admissible upon demonstration that the probative value of the proposed evidence outweighs its prejudicial effect. In Handy, Binnie J. stated at paras. 41 and 48:

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 [citation omitted].

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

(2) The Test for the Admission of Similar Fact Evidence

[64] In cases where, as here, similar fact evidence is relied upon by the Crown to prove identity, the tendered evidence must tend to demonstrate some striking or high degree of similarity between the alleged similar acts and the charged act(s). This standard of “striking similarity” may be met by the Crown upon proof of a unique trademark or signature, or by the combined effect of a number of significant similarities common to the similar acts and the charged act(s). In elaborating upon this standard in R. v. Arp (1998), 1998 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.), Cory J. said at p. 342:

[A] principled approach to the admission of similar fact evidence will in all cases rest on the finding that the accused’s involvement in the alleged similar acts or counts is unlikely to be the product of coincidence. This conclusion ensures that the evidence has sufficient probative force to be admitted, and will involve different considerations in different contexts. Where, as here, similar fact evidence is adduced on the issue of identity, there must be a high degree of similarity between the acts for the evidence to be admitted. For example, a unique trade mark or signature will automatically render the alleged acts “strikingly similar” and therefore highly probative and admissible. In the same way, a number of significant similarities, taken together, may be such that by their cumulative effect, they warrant admission of the evidence. Where identity is at issue ordinarily, the trial judge should review the manner in which the similar acts were committed – that is to say, whether the similar acts involve a unique trade mark or reveal a number of significant similarities. This review will enable him or her to decide whether the alleged similar acts were all committed by the same person. This preliminary determination establishes the objective improbability that the accused’s involvement in the alleged acts is the product of coincidence and thereby gives the evidence the requisite probative force. Thus, where the similar fact evidence is adduced to prove identity, once this preliminary determination is made, the evidence related to the similar act (or count, in a multi-count indictment) may be admitted to prove the commission of another act (or count) [emphasis added].

[65] Justice Cory also provided suggestions for trial judges to consider in deciding upon the admissibility of similar fact evidence where the evidence is adduced to prove identity (at p. 345):

(1) Generally where similar fact evidence is adduced to prove identity a high degree of similarity between the acts is required in order to ensure that the similar fact evidence has the requisite probative value of outweighing its prejudicial effect to be admissible. The similarity between the acts may consist of a unique trade mark or signature [or] a series of significant similarities.

(2) 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.

(3) There may well be exceptions but as a general rule if there is such a degree of similarity between the acts that it is likely that they were committed by the same person then the similar fact evidence will ordinarily have sufficient probative force to outweigh its prejudicial effect and may be admitted.

(4) The jury will then be able to consider all the evidence related to the alleged similar acts in determining the accused’s guilt for any one act.

(3) The Application in this Case of the Test for the

Admission of Similar Fact Evidence

[66] The appellant makes two arguments concerning the alleged similar fact evidence.

[67] First, he asserts that the trial judge erred by failing to properly assess the probative value of the alleged similar acts in his first ruling. In particular, counsel for the appellant maintained in oral argument that the trial judge erred by failing to assess the alleged similarity of the acts, as distinct from assessing the evidence linking the appellant to the alleged acts, and by holding that the tendered similar fact evidence met the striking similarity standard. Although the appellant makes several submissions in support of those arguments, in my view they may conveniently be considered under two headings: (a) the trial judge’s consideration of the evidence linking the appellant to the alleged similar acts; and (b) the trial judge’s assessment of the cogency of the similar fact evidence.

[68] Second, the appellant asserts that the trial judge erred in his third ruling by permitting the Crown to lead evidence establishing that the appellant shot someone during the St. Thomas robbery.

[69] I will consider each of these arguments in turn.

(i) The First Ruling: Assessment of the Probative Value

of the Similar Fact Evidence

(a) The trial judge’s consideration of the evidence linking

the appellant to the alleged similar acts

[70] In his first ruling, the trial judge provided a brief description of the alleged similar acts, referenced the general exclusionary rule which renders similar fact evidence presumptively inadmissible, and identified the narrow basis for its admission, that is, when its probative value outweighs its prejudicial effect. As well, he recognized the standard of striking similarity which applies to the reception of similar fact evidence tendered to establish identity and indicated that he applied that standard to his assessment of the similar fact evidence tendered by the Crown. He also stated:

I accept that the standard of proof required of the Crown is also found in [R. v. B.(L.) (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.)], and is; [sic] that there must be some evidence of a link between the accused and the acts of discreditable conduct as a pre-condition to admissibility. This quantum of proof is essential to inquire into probative value and if there is no sufficient link that the accused committed the act, it has no probative value.

[71] Counsel for the appellant argues in reliance on the decision of the Supreme Court of Canada in Arp that the trial judge erred by considering the evidence linking the appellant to the alleged similar acts before assessing the similarity of the alleged acts. She quite properly does not dispute the trial judge’s holding that evidence linking the appellant to the alleged acts was a necessary precondition to the admissibility of the similar fact evidence. That principle is firmly established. See, for example, Sweitzer v. The Queen, 1982 23 (SCC), [1982] 1 S.C.R. 949. Rather, she asserts that the trial judge’s consideration of that issue was premature because it diverted his attention from the critical assessment of the similarity of the alleged acts in relation to the offences charged. In essence, she maintains that the trial judge misapprehended the initial inquiry or threshold test for the admission of similar fact evidence and, as a result, his assessment of the similarities of the alleged acts was fatally flawed.

[72] In considering those submissions, three important matters which affected the conduct of the voir dire and the trial judge’s first ruling on the similar fact evidence should be emphasized at the outset.

[73] First, the trial judge’s approach to his analysis (first considering the evidence which linked the appellant and Norouzali to the similar acts) was urged upon him during the voir dire by trial counsel for both the Crown and the appellant (not counsel on this appeal). In her submissions to the trial judge on the voir dire, for example, one of the appellant’s trial counsel stated: “Now, if you cannot determine that the acts are those of the accused, then that is the end of this entire debate. You don’t even go any further. I submit that’s where the Crown’s case fails, right there”. Similarly, in reliance on the decision of this court in R. v. B.(L.) (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 and the decision of the Supreme Court of Canada in Sweitzer, Crown counsel at trial framed the applicable initial inquiry as follows: “The first branch of this particular test: is this conduct alleged as similar fact the [conduct] of the accused?”

[74] Second, in his reasons for his first ruling, the trial judge considered the factors and followed the framework of analysis suggested in R. v. B.(L.) to be applicable in balancing the probative value of proposed similar fact evidence against its prejudicial effect. At the time of the voir dire, the decision in R. v. B.(L.) was a recent authority from this court regarding the admissibility of similar fact evidence. In that case it was held that the inquiry into a link between allegedly similar acts and the accused was the first step in the inquiry into the relevance of proposed similar fact evidence. As observed by Charron J.A. in R. v. B.(L.) at p. 491, “The inquiry into relevance and materiality in fact constitutes the threshold test for admissibility of all evidence.”

[75] Third, neither the trial judge nor trial counsel had the benefit on the voir dire of the Supreme Court of Canada’s recent decisions in Arp, Handy and Shearing, which were released after the trial in issue on this appeal.

[76] R. v. B.(L.) confirmed the requirement that the trial judge, during the process of balancing the probative value of similar fact evidence against its prejudicial effect, inquire into whether the alleged similar acts are those of the accused. R. v. B.(L.) was not an identification case. Rather, it concerned the admissibility of alleged prior bad acts or discreditable conduct in a trial concerning sexual offences. In my view, to the extent that the decision in R. v. B.(L.) is to be regarded as of general application in similar fact cases, it must now be read in light of the more recent jurisprudence from the Supreme Court of Canada concerning, in particular, the admissibility of similar fact evidence tendered in proof of identity. That jurisprudence, as I have stated, was not available to the trial judge or trial counsel in this case.

[77] Justice Cory emphasized in Arp that, where identity is at issue, ordinarily the trial judge must first review the manner in which the similar acts were committed in order to determine whether it is likely that the alleged similar acts were all committed by the same person. It is useful to repeat the salient part of Cory J.’s direction at p. 342:

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

[78] Justice Cory thus twice described the trial judge’s review of the manner in which the similar acts were committed as a “preliminary determination”. He then further commented at p. 344:

Where the fact in issue is the identity of the perpetrator of the crime, then in the usual course of events the trial judge must assess the degree of similarity demonstrated by the manner in which the acts in question were committed to determine whether it is likely the same person committed the alleged similar acts. Once it is determined on a balance of probabilities that the same person committed the alleged similar acts, the similar fact evidence may be admitted to prove that the accused committed the offence or offences in question.

In determining whether similar fact evidence should be admitted to prove identity, the trial judge must have regard to the manner in which the alleged similar acts were committed. In general, evidence linking the accused to each alleged similar act should not be part of this evaluation….In other words, the similarity of the acts indicates whether one person committed the crimes: in most cases, evidence as to the accused’s connection to each similar act indicates whether the accused committed the crimes. Only after the trial judge has considered the manner of the commission of the similar acts and is satisfied that there is evidence which could lead the jury to conclude that all the acts were committed by one person should he or she admit the evidence related to each act for the jury’s consideration, including the evidence of the accused’s involvement in each similar act [underlined emphasis in first and third paragraphs in original; other emphasis added].

[79] Thus, the assessment of the similarities of the prior acts is centred on the similarities in, or the unifying features of, the manner in which the alleged acts were committed. The objective of the assessment is to determine the likelihood, or otherwise, of coincidence, that is, whether it is likely that the similar acts were all committed by the same person. That assessment, at least in the first instance, is not concerned with whether a particular accused can be connected to the alleged acts.

[80] Justice Cory’s observations on this issue, fairly read, were not intended to establish a rigid rule: Arp at p. 345, per Cory J. For that reason, he prefaced his remarks with the words “in general”. Nonetheless, his comments underscore the importance of differentiating the evaluation of the similarities of the alleged acts from the evaluation of the evidence linking the accused to the acts and the need to embark upon the former evaluation as a preliminary inquiry.

[81] Based on Arp, in general, only if the manner of commission of the alleged similar acts tends to suggest the likelihood that all the alleged acts were committed by the same person is it necessary to then take the next step of assessing the factors which connect the accused to the alleged acts. The reception of the tendered similar fact evidence ultimately requires the trial judge to be satisfied on both inquiries. I should not be taken, however, as suggesting that there will never be cases where evidence concerning the involvement of the accused in the alleged similar acts would not be material to the assessment of the similarities of the alleged acts. There may well be cases, as implicitly recognized by Cory J. in Arp, where examination of the factors which connect the accused to the alleged acts should form part of the assessment of the manner of commission of the alleged similar acts and, hence, of the initial determination of whether the tendered evidence is admissible: see, for example, R. v. Dickinson (1984), 1984 5690 (ON CA), 40 C.R. (3d) 384 (Ont. C.A.) at 389. This, however, was not such a case.

[82] The reasons of the trial judge indicate, as alleged by the appellant, that he approached the threshold test for admissibility of the similar fact evidence on the basis of an assessment of the evidence tendered to demonstrate a link between the similar acts and the appellant and Norouzali. I reiterate, given the submissions made by both counsel on the voir dire and the decision in R. v. B.(L.), that approach was understandable. In light of the subsequent decision of the Supreme Court of Canada in Arp, however, I conclude that the trial judge erred in this case by adopting that approach. In many cases, the fact that the trial judge first considered whether there was any evidence linking the accused to the alleged similar acts (the approach identified in R. v. B.(L.)) will not constitute reversible error. In this case, however, in my view, that approach skewed the trial judge’s reasoning on the vital issue of the degree of similarity between the alleged acts and the charged acts.

[83] In assessing the evidence connecting the appellant and Norouzali to the alleged similar acts, the trial judge made brief mention of what he regarded as the “common features” of the armed robberies. He stated that they included “general descriptions by witnesses that one of the robbers was shorter than the other and was in command; guns were used threateningly and on occasion fired; balaclavas were worn; and the facts and pleas in respect of [the St. Thomas robbery].” He also had regard to the DNA evidence linking Norouzali to Gagnons and the evidence establishing that the appellant was seen with Norouzali on the morning of September 15, 1994, and concluded that there was some evidence that the conduct in question could be attributed to the appellant and Norouzali.

[84] At this stage of his analysis, however, the trial judge did not undertake any detailed scrutiny of the similarities or, importantly, of the dissimilarities between the alleged acts and the charged acts. Had he done so, the weaknesses of some of the similar fact evidence would have been cast in clear relief. In particular, close scrutiny of the similarities and dissimilarities of the alleged acts at the outset of the trial judge’s analysis would have shown that the Crown had not established that all five similar acts (the five armed robberies) were likely committed by the same persons.

[85] Consideration of the evidence concerning the First London robbery illustrates this point. The modus operandi of the bank robber did not match the modus operandi of the robbers at Gagnons. Two assailants were involved at Gagnons. A single assailant entered the bank branch during the First London robbery. The robber in charge at Gagnons was said to be controlling and aggressive, issuing commands to persons in the store. The evidence regarding the perpetrator of the First London robbery did not suggest that he behaved in that fashion. As well, the robbers at Gagnons entered through the front door. The bank robber smashed a window with a brick to gain entry to the bank. In addition, the Gagnons robbery occurred in the late afternoon, before the close of business. The First London robbery took place in the morning, before the bank opened to the public for business.

[86] The Crown argues that the evidence of the use of firearms traceable to Gagnons was accepted by the trial judge as a badge or hallmark of the similar acts which, when viewed in combination with the rest of the evidence relied upon by the Crown, effectively eclipsed the dissimilarities of the alleged acts. That argument does not assist the Crown in relation to the First London robbery: the Ruger stolen from Gagnons was eliminated as the firearm discharged during the First London robbery and the Colt stolen from Gagnons could neither be eliminated nor linked to that robbery.

[87] Crown counsel asserts that the fact that the Colt stolen from Gagnons could neither be eliminated nor linked to the First London robbery held some evidential value when examining the common features between that robbery and the events at Gagnons. In that connection, Crown counsel acknowledged during oral argument before this court that, without that evidence, the First London robbery did not satisfy the test for the admission of similar fact evidence; he submits, however, that the evidence concerning the First London robbery can draw strength or increased probative worth from the evidence regarding the other armed robberies.

[88] I do not agree. Given the significant differences between the Gagnons robbery and the First London robbery, the Crown’s case that they were likely committed by the same persons depended on the alleged signature or hallmark that the same weapon was used in each. Evidence that one of the guns stolen from Gagnons could not be eliminated as the gun used in the First London robbery was not evidence that it was used in the latter robbery.

[89] I conclude, in the circumstances, that the trail judge’s initial focus on the evidence linking the appellant and Norouzali to the alleged similar acts, to the virtual exclusion of an assessment of the similarities and dissimilarities of the alleged acts, was reversible error. The result of that approach was to deflect the trial judge’s analysis away from the rigorous scrutiny of the alleged acts required to determine their admissibility. That level of early scrutiny would have illuminated the weaknesses inherent in some of the similar fact evidence tendered by the Crown.

(b) The trial judge’s assessment of the cogency of the

similar fact evidence: the striking similarity standard

[90] The trial judge identified the purposes for which the similar fact evidence was tendered as being the “very live issue of identity and…the issue of method or pattern or modus operandi.” That issue identification was uncontroversial.

[91] In assessing the probative value of the similar fact evidence, the trial judge stated:

Firstly, when examining the armed robberies in which 45’s can be identified as being weapons used in their commission, there is little doubt that the further evidence that the two 45’s were included among those guns stolen from Gagnons sports store in September 1994, and were seized from Woodcock and Norouzali in their arrest for the National Grocers armed robbery in March 1995 constitutes powerful evidence. Even more powerful is the DNA evidence attributable to Norouzali found to be present in respect of both the September 1994 and March 1995 crimes. This evidence, coupled with the evidentiary link of the two 45’s being used in armed robberies in September 1994, November 1994, and March 1995 increases the strength of the evidence when it is considered in combination. When further combined with the method of all the robberies, the general descriptions and conduct of the robbers and their general method of operation, the totality of the evidence has a very high degree of probative value in respect of the issue of identity.

I have examined each incident of discreditable conduct and the evidence relative to the incident and applied the tests set out herein to determine the admissibility of the proposed evidence. Thereafter, I considered and assessed the totality of the nature of the proposed discreditable conduct, the circumstances surrounding each of them, and their connection to each other as well as to the offences giving rise to this trial.

I find that the general method of the robberies and the conduct and descriptions of the robbers in all the proposed armed robberies amount to conduct that is very similar. I reach this conclusion notwithstanding my awareness that many robberies are no doubt committed in similar fashion as that described in the proposed evidence. However, when such evidence is combined with the fact that the robberies in this action were committed with the two 45’s being brandished by the two generally described robbers, the similarities become “strikingly similar”. In my view, when the evidence is considered in totality, the robberies have a “hallmark” feature or “signature” to them that is made all the more distinctive by the specifics of [sic] guns used. I am, on the evidence presented on this voir dire, able to say that the evidence of the proposed discreditable conduct is so similar to the Gagnons sports store robbery that it is unlikely that it was committed by persons other than Woodcock and Norouzali. That being the case I find that the probative value of the proposed evidence is of high value to the issue of identification and to method of operation [emphasis added].

[92] The appellant’s counsel submits that the trial judge erred by holding that the similar fact evidence met the requisite standard of striking similarity. She argues that the similarities among the alleged acts are not striking. She also asserts that the trial judge erred by failing to properly assess the dissimilarities among the alleged acts. In considering those submissions and the basis for the trial judge’s conclusion that the requisite striking similarity standard was met, it is useful to first review the Crown’s position on the voir dire regarding the similar fact evidence.

[93] There were three parts to the Crown’s argument on the voir dire in support of the admission of the similar fact evidence. First, the Crown submitted that the armed robberies represented a continuum or pattern of similar criminal conduct by the appellant and Norouzali, commencing with the robbery and shootings at Gagnons on September 14, 1994 and ending with the St. Thomas robbery on March 10, 1995. The Crown tendered evidence of the London robberies, which occurred between those two dates, as relevant to prove the identity of the perpetrators of the Gagnons robbery and shootings.

[94] The Crown submitted that the evidence regarding the London robberies was divisible into two categories: (a) the evidence concerning those robberies which allegedly could be “directly linked” to the events at Gagnons; and (b) the evidence concerning those robberies which the Crown acknowledged could only be “linked indirectly” or circumstantially to the events at Gagnons. On the Crown’s theory, the evidence concerning the Second and Third London robberies fell within the first “directly linked” category, while the evidence concerning the First and Fourth London robberies came within the second, “indirectly linked” category.

[95] The second aspect of the Crown’s position was that the similarities between the events at Gagnons and the St. Thomas robbery were so strikingly similar that, even without regard to the evidence matching the Ruger and the Colt stolen from Gagnons to the firearms recovered after the St. Thomas robbery, the evidence regarding the latter incident was admissible as relevant to establishing identity.

[96] Third, the Crown properly argued that the trial judge was entitled, in determining the admissibility of the similar fact evidence, to consider the totality of the evidence relied upon by the Crown in its case against the appellant, including the circumstances surrounding the commission of the armed robberies. As relevant on this appeal, the additional, non-similar fact evidence relied upon by the Crown included:

(i) the nature of the Gagnons robbery and the manner of its execution;

(ii) the motive in the Gagnons robbery, that is, the allegation that it was a planned robbery for the purpose of stealing firearms rather than money;

(iii) the presence of Norouzali’s DNA at the scene of the Gagnons robbery and in Thomas’ car;

(iv) the sighting of the appellant with Norouzali in London during the morning of September 15, 1994;

(v) the matching of the firearms recovered following the St. Thomas robbery to the Ruger and the Colt stolen from Gagnons;

(vi) Thompson’s evidence of the retrieval by the appellant or Norouzali, or both of them, of guns from a hidden countryside location prior to the St. Thomas robbery;

(vii) Thompson’s evidence that the appellant told him, prior to the St. Thomas robbery, that he would obtain the guns for that robbery;

(viii) Thompson’s evidence that he provided the appellant with .45 calibre ammunition from time to time; and

(ix) the actual height of the appellant and Norouzali as confirmed when they were booked at the police station following their arrest (the appellant was 5’6” tall and Norouzali was 5’9” tall).

[97] Although I may not have reached the same conclusion, I am satisfied that it was open to the trial judge on the evidence on the voir dire to find that the similar fact evidence concerning the Second and Third London robberies and the St. Thomas robbery met the striking similarity standard. I am not persuaded, however, that that finding was open to him in connection with the First and Fourth London robberies.

The St. Thomas Robbery

[98] The Crown had a strong case for the admission of the similar fact evidence concerning the St. Thomas robbery. The appellant, Norouzali and Thompson were caught by the police shortly after the robbery. Accordingly, the identity of the perpetrators of that robbery was not in issue. Further, the evidence on the voir dire established significant connecting factors between the St. Thomas robbery and the events at Gagnons. They included: the robbers used loaded guns in both robberies; a firearm was discharged in both robberies; at least one person was deliberately shot in both robberies; two of the three firearms recovered after the St. Thomas robbery (the Colt and the Ruger) were traced to the firearms stolen from Gagnons; Norouzali was in possession of one of the traced firearms; DNA evidence established that Norouzali was the second robber at Gagnons, but not the shooter; the robber who was described by witnesses as the man in charge during the St. Thomas robbery, like the robber in charge at Gagnons, was shorter and heavier than the perpetrator of the St. Thomas robbery who was said to be the next most actively involved perpetrator in the conduct of that robbery; the robbers wore balaclavas or masks during both robberies; the robbers fled, or attempted to flee, on both occasions in a stolen vehicle; and a theft occurred during each incident.

[99] As well, the appellant and Norouzali pleaded guilty to offences arising from the St. Thomas robbery. In the appellant’s case, he acknowledged the facts surrounding the St. Thomas robbery as part of his guilty plea.

[100] Finally, certain of the admitted facts surrounding the commission of the St. Thomas robbery, as acknowledged by the appellant’s trial counsel on the voir dire, were admissible without regard to the similar fact rule: for example, the fact that the appellant was with Norouzali and Thompson when they were found on March 10, 1995 in possession of two guns subsequently traced to Gagnons.

[101] I conclude, therefore, that there was a sound evidentiary basis on the voir dire supporting the trial judge’s conclusion that the asserted facts concerning the St. Thomas robbery were strikingly similar to the events at Gagnons. Indeed, during oral argument of this appeal, counsel for the appellant did not vigorously suggest otherwise.

The Second and Third London Robberies

[102] I reach a similar conclusion concerning the Second and Third London robberies.

[103] The evidence tendered by the Crown concerning the Second London robbery indicated that two armed robbers, both wearing balaclavas and one shorter than the other, carried out the robbery. Again, guns were discharged. Expert evidence established a direct connection between one of the discharged firearms and the Ruger stolen from Gagnons. As well, the shorter robber involved in the Second London robbery was described by witnesses as being in charge or in command of the robbery. The men fled from the scene in a stolen vehicle. Those facts, in my view, bore striking resemblance to the facts asserted in relation to the events at Gagnons and provided evidence which supported the Crown’s assertion that the same two persons likely committed the Second London robbery and the robbery and shootings at Gagnons.

[104] The Third London robbery was again carried out by two armed robbers wearing balaclavas. The shorter of the two robbers was described as in charge of the robbery and was said to be acting aggressively. He discharged a firearm in the direction of a bank employee. Both robbers fled the scene in a stolen car. The firearms discharged during the Third London robbery were linked by expert evidence to the Ruger and the Colt stolen from Gagnons. It was open to the trial judge to conclude, in my opinion, that those facts established striking connections between the Third London robbery and the events at Gagnons. Thus, there was a cogent evidentiary basis for the trial judge’s conclusion that the standard of striking similarity had been met in respect of the Third London robbery.

The First and Fourth London Robberies

[105] In contrast, the evidence of similarities between the First and Fourth London robberies and the robbery and shootings at Gagnons was materially weaker. That fact was recognized by the Crown on the voir dire when Crown counsel grouped the First and Fourth London robberies in a separate category of “indirectly linked” similar acts and when he urged that the armed robberies be regarded as part of a larger continuum of criminal conduct.

[106] The trial judge’s conclusion that the similar fact evidence concerning the armed robberies, including the First and Fourth London robberies, satisfied the striking similarity standard was based on: (a) the evidence matching the Ruger and the Colt stolen from Gagnons to the firearms recovered after the St. Thomas robbery; (b) the DNA evidence linking Norouzali to Gagnons; (c) the evidence concerning the general method of the robberies and the conduct and the descriptions of the robbers “in all the proposed armed robberies” [emphasis added]; and (d) the “totality” of the evidence relied upon by the Crown in its case against the appellant and Norouzali, including the non-similar fact evidence.

[107] No separate connecting factors or discrete similarity analyses concerning the First and Fourth London robberies are set out in the trial judge’s reasons.

[108] In addition, as I have mentioned, the trial judge did not expressly address the dissimilarities of the alleged acts in his reasons. As pointed out by Crown counsel on this appeal, the alleged dissimilarities were canvassed by one of the appellant’s trial counsel during her submissions on the voir dire. Accordingly, it cannot be said that the trial judge was not aware of the dissimilarities. Nonetheless, in the absence of any discussion of the dissimilarities in the first ruling, I cannot be certain that the trial judge considered the full array and the significance of the dissimilarities arising on the alleged facts of the First and Fourth London robberies and that he adequately assessed the cogency of those particular alleged acts.

[109] The issue, therefore, is whether the evidence relied upon by the trial judge to support his conclusion that the similar fact evidence concerning all of the armed robberies met the striking similarity standard in fact supports that conclusion in connection with the First and Fourth London robberies. In my view it does not, for several reasons.

[110] First, in reaching his conclusion that the striking similarity standard had been met in connection with all of the robberies, the trial judge relied on the evidence matching the Ruger and the Colt stolen from Gagnons to the firearms recovered after the St. Thomas robbery. There is no doubt that this evidence was of powerful probative force. It had no relevance or probative value, however, in connection with the First and Fourth London robberies because the stolen Ruger and Colt were not traced to the firearms used during those incidents. As acknowledged by Crown counsel on this appeal, the trial judge clearly misspoke, or overly generalized, when he indicated that there was an evidentiary link between the Ruger and the Colt and the “robberies in September 1994”. The Ruger was eliminated as the firearm discharged at the First London robbery (the September 19, 1994 robbery) and the Colt could neither be eliminated nor linked to that robbery.

[111] Ammunition recovered after the Fourth London robbery was later found to be .45 calibre ammunition that had been reloaded on the Thompsons’ reloading press. There was also evidence from Thompson that he had provided the appellant with .45 calibre ammunition from time to time. There was no evidence, however, regarding when he had done so in relation to September 1994; nor was there evidence that he had ever provided Norouzali with such ammunition.

[112] There is no doubt that the next evidentiary factor relied upon by the trial judge, that is, the DNA evidence linking Norouzali to Gagnons, was also very strong, and admissible evidence. It was irrelevant, however, to prove that the same two persons who committed the robbery and shootings at Gagnons also likely committed the First and Fourth London robberies.

[113] As well, I do not agree that the evidence of the general method of the First and Fourth London robberies, and of the conduct and the descriptions of the robbers involved in those incidents, was strikingly similar to those factors in the robbery and shootings at Gagnons.

[114] As cautioned by Binnie J. in Shearing at para. 60, “dissimilarities can always be exaggerated and multiplied”, leading to distortion. In this case, however, I am of the opinion that there were very significant dissimilarities between the First and Fourth London robberies and the charged offences. I have already outlined in these reasons certain of the key dissimilarities between the First London robbery and the events at Gagnons. In connection with the Fourth London robbery, those dissimilarities included:

(i) unlike the Gagnons incident, no shots were fired during the Fourth London robbery; and

(ii) the “hallmark” relied upon by the Crown, that is, the use of firearms stolen from Gagnons, was not demonstrated to apply to the Fourth London robbery; neither the stolen Ruger nor the stolen Colt were linked to this robbery, although the ammunition recovered at the scene was later determined to be ammunition which had been reloaded on the Thompsons’ reloading press.

[115] The trial judge held in respect of the Fourth London robbery that “the method, general descriptions of the robbers and conduct is [sic] consistent with that described above”. Although the similarities relied upon by the Crown concerning the Fourth London robbery were undoubtedly stronger than were those relating to the First London robbery, given the significant dissimilarities between the First and Fourth London robberies and the charged offences which I have mentioned, it is my view that the similar fact evidence favourable to the Crown’s position concerning the method and the conduct of the robbers involved in the First and Fourth London robberies did not reach the requisite high or striking level of similarity necessary to show that the same persons who committed those robberies likely committed the robbery and shootings at Gagnons.

[116] Finally, the trial judge relied upon the “totality” of the Crown’s evidence in its case against the appellant and Norouzali in concluding that the facts of all the armed robberies, including the facts concerning the First and Fourth London robberies, met the striking similarity standard. I have previously set out the non-similar fact evidence relied upon by the Crown on the voir dire. It concerns: (a) the alleged facts relating to the events at or circumstances surrounding the Gagnons and St. Thomas robberies; (b) the established physical characteristics of the appellant and Norouzali; (c) the matching of the recovered Ruger and Colt to the firearms stolen at Gagnons; and (d) the sighting of the appellant with Norouzali in London on September 15, 1994.

[117] In my view, only the evidence regarding the sighting of the appellant in the company of Norouzali can be said to strengthen the probative worth of the evidence concerning either the First or Fourth London robberies in any material way.

[118] The appellant was seen with Norouzali in London only four days before the First London robbery. That fact establishes a temporal connection between the events at Gagnons and the First London robbery, thereby strengthening the evidential basis for the asserted involvement of the same robbers in the latter incident. The evidential reach of the sighting, however, is limited to the First London robbery. It does not have the same temporal connection to the Fourth London robbery. Moreover, viewed singly or in combination with the other evidence relied upon by the Crown, in my view the sighting falls far short of elevating the connections between the First London robbery and the events at Gagnons to the high threshold required by the striking similarity standard.

[119] I am mindful that the required degree of similarity in identification cases can be established upon demonstration of a number of proven significant similarities or a hallmark or signature feature common to the similar acts and the charged act(s). I conclude that it was open to the trial judge on the evidence to find that such similarities and the hallmark of the use of firearms stolen from Gagnons existed in connection with the Second and Third London robberies and the St. Thomas robbery. I am not persuaded, however, that either method of meeting the high degree of similarity standard requisite in identification cases was effective concerning the First and Fourth London robberies.

(c) The trial judge’s assessment of the cogency of the

similar fact evidence: the evidence linking the appellant

to the alleged similar acts

[120] In accordance with the decision in Arp, it is necessary in deciding upon the admissibility of alleged similar fact evidence to first consider the similarity of the alleged acts, generally without regard to the evidence as to the accused’s involvement in each act. Once that preliminary assessment has been conducted, it is then necessary to assess the factors, if any, which connect the accused to the alleged acts. Both assessments are integrally related to the evaluation of the cogency of tendered similar fact evidence.

[121] In this case, even if the requisite striking similarity standard was satisfied in connection with all of the alleged similar acts, which in my view does not apply here, I conclude that the evidence did not establish a connection between the First and Fourth London robberies and the appellant. Only brief reference to the evidence is necessary to illustrate this deficiency in the Crown’s case against the appellant.

[122] First, the assailant in the First London robbery was described as a black, bearded male. He was said by some witnesses to be 5’6” tall. Other witnesses said that he was 5’7” to 5’8” tall. In contrast, the appellant is white, has brown hair and is balding. Thus, although the appellant is 5’6” tall, the descriptions of the perpetrator involved in the First London robbery did not generally match key physical characteristics of the appellant.

[123] In addition, it was the Crown’s position at trial that the appellant was the robber in charge and the shooter at Gagnons, who was described by witnesses as having acted aggressively and peremptorily. As I earlier mentioned, the alleged conduct of the assailant in the First London robbery did not match the described conduct of the robber at Gagnons who was alleged to be the appellant.

[124] Thus, the evidence of the physical features and the conduct of the assailant involved in the First London robbery is consistent with the commission of that robbery by a person other than the appellant. The factors supporting this possibility were not addressed by the trial judge in his rulings on the similar fact evidence. Stated bluntly, no nexus between the appellant and the First London robbery was established on the voir dire. Moreover, I agree with the appellant’s submission that the absence of such a nexus was underscored during the course of the trial, when the defence theory of an alternate suspect emerged.

[125] Similarly, no significant connection between the appellant and the Fourth London robbery was demonstrated by the Crown. Although the Crown relied on Thompson’s evidence that he had provided the appellant with .45 calibre ammunition from time to time to assert a link between the appellant and the Fourth London robbery, Thompson’s evidence did not establish when he had provided such ammunition to the appellant. In addition, the fact of the use of .45 calibre ammunition during the Fourth London robbery was not itself relevant to proof of the identity of the user of the ammunition, particularly when the defence theory at trial implicated an alternate suspect (Thompson) who had ready and on-going access to .45 calibre ammunition. Accordingly, Thompson’s evidence concerning the provision to the appellant of .45 calibre ammunition did not further in any material way the inquiry in relation to the appellant sought to be advanced by the admission of the evidence concerning the Fourth London robbery, that is, proof of the identity of the appellant as one of the perpetrators of and the shooter at Gagnons.

[126] Moreover, the physical descriptions of the assailant in control of the Fourth London robbery did not accord with the appellant’s proven physical characteristics. The former assailant was described by witnesses as having olive-coloured skin and being between 5’8” and 5’10” tall. Those characteristics did not match the established physical features of the appellant; nor were they similar to the characteristics of the robber at Gagnons alleged by the Crown to be the appellant.

[127] While there are important reasons for an appellate court to apply a high degree of deference to a trial judge’s decision on the admissibility of similar fact evidence and to his or her appreciation of the evidence, that deference is inapplicable in the face of an error of law: R. v. B.(C.R.) (1990), 1990 142 (SCC), 55 C.C.C. (3d) 1 (S.C.C.) at pp. 23-24, per McLachlin J.; R. v. B.(L.) at p. 505, per Charron J.A.; and Arp at p. 340, per Cory J. Stated somewhat differently, a trial judge does not have the discretion to admit similar fact evidence where its prejudicial effect outweighs its probative value: Shearing at pp. 250-51, per Binnie J. I conclude, for the reasons stated, that the tendered evidence regarding the First and Fourth London robberies did not meet the striking similarity standard and, further, did not establish a nexus between the appellant and the alleged similar acts. The prejudicial effect of the evidence concerning those robberies was undisputed and outweighed its probative value. Accordingly, that evidence should not have been admitted.

[128] Crown counsel argues that the admission of the similar fact evidence concerning the First London robbery did not taint the verdicts in this case. He relies on the trial judge’s instructions to the jury that, when deciding whether there were similarities among the alleged acts, the jury should look to the totality of the evidence and, as well, that it had to find beyond a reasonable doubt that the appellant had committed the alleged similar acts.

[129] I agree with the Crown that the latter instruction favoured the defence. Since the decision in Arp, it is clear that a jury need only be satisfied on a balance of probabilities that the same person committed the similar acts in question: see Arp at pp. 344 and 349-54, per Cory J. In this case, however, I have concluded that the evidence concerning two of the similar acts did not meet the requisite striking similarity standard or establish a connection to the appellant. The favourable jury instruction could not cure the strong prejudice occasioned to the appellant by the introduction of inadmissible similar fact evidence; nor could it ensure that the dangers of propensity evidence warned against by Sopinka J. in R. v. D.(L.E.) were avoided. The probative value of the alleged facts concerning the First and Fourth London robberies was slight and far out-weighed by their prejudicial effect. I conclude that a new trial is required in the interests of justice.

(ii) The Trial Judge’s Third Ruling

[130] As I have already concluded that a new trial is required as a result of the improper admission of certain of the similar fact evidence tendered by the Crown, it is unnecessary to address all of the remaining grounds of appeal raised by the appellant. One of those grounds, however, concerns the admission of additional similar fact evidence under the trial judge’s third ruling. For that reason, I will comment on it briefly.

[131] In his second ruling on the similar fact evidence, the trial judge precluded the Crown from leading evidence that the appellant shot someone during the St. Thomas robbery. The trial judge based his ruling on his view that the remainder of the admitted similar fact evidence was sufficient to permit the Crown to assert an alleged pattern of criminal conduct by the appellant. The trial judge also concluded that the prejudicial effect of the proposed additional evidence outweighed its probative value. Consequently, it was excluded.

[132] The second ruling was made before the Crown called any evidence at trial. It is not disputed that, at that time, no indication had been given by the defence of its theory that Thompson, rather than the appellant, was or could have been both a perpetrator in, and the shooter during, the events at Gagnons.

[133] The evidence established that Thompson was an accomplished marksman and gun enthusiast, as well as an active hunter and member of a gun club, and a competitive marksman. He had worked in the sporting goods industry for many years. Three handguns and a large assortment of ammunition for various firearms, including the same type of ammunition that was recovered at Gagnons, were seized from his home following his arrest on March 10, 1995.

[134] The Crown argued that this evidence, much of it elicited or emphasized by the defence, demonstrated that the jury was being asked by the defence to infer that Thompson was more likely than not to be the Gagnons shooter. As a result, the probative value of the evidence excluded under the second ruling had assumed a fundamentally different character during the course of the trial. Accordingly, trial counsel for the Crown requested that the trial judge reverse his second ruling, to permit the reception of the additional evidence, “[B]ecause the defence has been put in a focus that did not exist at the time of the [second] ruling.” The trial judge agreed. He stated:

[I] am of the view that given that that is the position of the defence that Deryck Thompson could indeed be the second person in Gagnon Sports Store, in my view, does change the situation [sic]. I have reconsidered it with respect to the additional evidence that has been put forward forcefully in that regard. I am satisfied that it does go to the issue of identification, specifically as it is compared now to the evidence of Deryck Thompson. I am satisfied that that portion of the evidence can now be adduced that indeed the person was shot in the leg. I say that because it is an issue of identification and it does show the difference of the respective conduct in the grocery store with respect to [the appellant] and the others that were present at the time. I am satisfied, therefore, that the added evidence that I have heard, in totality, allows that that portion of the evidence can now be put forward.

[135] The appellant’s counsel properly concedes that the trial judge was entitled to revisit his second ruling during the course of the trial. She argues, however, that the trial judge erred in concluding that the probative value of the proposed additional evidence (that the appellant shot someone during the course of the St. Thomas robbery) had been strengthened during the trial. She asserts that the defence theory of an alternate suspect was not based on any evidence of Thompson’s propensity and, accordingly, the highly prejudicial effect of the additional evidence continued to outweigh its probative value. I disagree.

[136] In R. v. Parsons (1993), 1993 3428 (ON CA), 84 C.C.C. (3d) 226 (Ont. C.A.), Finlayson J.A. addressed the propriety of propensity evidence by the Crown to counter a defence raised by the accused based on the alleged propensity of another person. He said at pp. 237-38:

In my opinion, Mercier J. was correct in ruling that if the evidence relating to Miller’s propensity to commit robberies was introduced into evidence, fairness dictated that the very similar evidence that the Crown possessed relating to the appellant could also be introduced. I would go further and suggest that if the appellant chose to throw sticks at Miller, the Crown should be able to counter this evidence with any similar evidence relating to the propensity to commit robbery, not only of the appellant, but of the other suspects arrested with the appellant….To rule otherwise would leave the jury with the highly misleading impression that Miller alone of those arrested had a propensity to commit robberies, whereas in truth he was part of a gang that committed robberies and the appellant was part of that gang [emphasis added].

See also R. v. Moore (1994), 1994 8730 (ON CA), 92 C.C.C. (3d) 281 (Ont. C.A.) at 284-85, per curiam; R. v. Mullins-Johnson, (1996), 1996 1214 (ON CA), 112 C.C.C. (3d) 117 (Ont. C.A.) at 123-24, per Catzman and Labrosse JJ.A.; and R. v. Bourguignon (1997), 1997 1917 (ON CA), 118 C.C.C. (3d) 43 at 56-7, per Moldaver J.A.

[137] In my view, given the evidence elicited during the trial from and regarding Thompson and the defence strategy concerning an alternate suspect, the trial judge correctly concluded that the additional evidence had become probative of the critical issue of identification. As asserted by the Crown on this appeal, at the time of the second ruling the evidence that the appellant shot someone during the St. Thomas robbery was evidence of general propensity: it tended to show that the appellant was the type of person likely to commit the charged offences. By the time of the third ruling, the same evidence had become probative of the identity of the shooter at Gagnons.

[138] The additional evidence concerning the appellant’s conduct, the truth of which he admitted, demonstrated that he had no hesitation in using a firearm to shoot someone during a robbery. That evidence, in my opinion, was admissible in the discretion of the trial judge to avoid leaving the jury with the misleading or distorted impression that Thompson alone, in comparison to the appellant, had sufficient familiarity, expertise and comfort with firearms to render it more likely than not that he was the Gagnons shooter. Accordingly, I would not give effect to this ground of appeal.

IV. DISPOSITION

[139] For the reasons given, I would allow the appeal, set aside the convictions and direct a new trial.

RELEASED:

“AUG 19 2003" “E.A. Cronk J.A.”

“EAC” “I agree E.E. Gillese J.A.”

“I agree Robert P. Armstrong J.A.”

[^1]: The process of “reloading” ammunition allows a spent shell casing to be reloaded with a bullet and gunpowder, producing a new, usable bullet.

[^2]: The evidence established that reloading devices are commonly used by persons involved in competitive shooting to minimize the costs of purchasing ammunition.