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

84 O.R. (3d) 227

Court of Appeal for Ontario,

Doherty, Laskin and Borins JJ.A.

October 6, 2006

Criminal law -- Evidence -- Similar fact evidence (prior discreditable conduct) -- Accused charged with first degree murder on basis that killing occurring during sexual assault or attempted sexual assault -- Circumstantial evidence supporting inference of sexual assault upon deceased -- Trial judge not erring in admitting evidence in facts surrounding accused's 1995 sexual assault -- Accused pleading guilty to 1995 offence and facts not in dispute -- Accused not denying responsibility for victim's death and not denying victim rejecting some form of advance shortly before assault -- Other circumstantial evidence supporting inference of sexual assault or attempted sexual assault before killing rendering drawing inference of sexual assault from prior offence safer or easier than if similar fact evidence sole support for inference -- Appeal from conviction for first degree murder dismissed. [page228]

Criminal law -- Trial -- Charge to jury -- Intoxication -- Trial judge's instruction to jury that Crown did not have to disprove intoxication unnecessary as trial judge had already told jury that intoxication is not freestanding defence -- Jury would have understood from charge as whole that Crown had to prove requisite intent for murder -- Accused's appeal from conviction dismissed.

The accused was charged with first degree murder. He and a friend met the victim and her friend by chance, and they walked to a somewhat secluded area. The accused's friend and the victim's friend left together, and the accused and the victim walked toward a more secluded area along the river. Physical evidence gathered at the site demonstrated that the accused severely beat the victim before dumping her into a rapidly flowing river, while she was still alive. The victim's body was found in the river 15 hours later. The accused did not deny that he killed the victim, but argued that he should be convicted of manslaughter on the basis of intoxication. The Crown alleged that the accused murdered the victim after sexually assaulting her or attempting to sexually assault her, thereby committing first degree murder as defined by s. 231(5) of the Criminal Code, R.S.C. 1985, c. C-46. There was circumstantial evidence of such an assault or attempted sexual assault. The Crown sought to adduce evidence of a sexual assault committed by the accused in 1995 on the basis that it constituted circumstantial evidence supporting the inference that the accused had sexually assaulted or attempted to sexually assault the deceased before he killed her. The trial judge admitted it for that purpose. There was no dispute as to the facts underlying the 1995 sexual assault, to which the accused pled guilty. The accused met the victim of that assault by chance in a social setting, lured her to a secluded area, and sexually assaulted her, using violence and threats of violence, when she rebuffed his sexual advances. The accused was convicted of first degree murder. He appealed, arguing that the trial judge erred in admitting evidence of the 1995 sexual assault. He also argued that the trial judge misdirected the jury on the issue of intoxication.

Held, the appeal should be dismissed.

In his closing submissions, defence counsel told the jury that the trial judge would explain "the defence of intoxication" to them, and stated"The burden of proof is on the Crown to prove that the defence of intoxication does not exist. If you are left with a reasonable doubt because of the evidence of intoxication, then you must find the accused guilty of manslaughter." In her instructions, the trial judge told the jury that the Crown had to prove either of the mental states required for murder under s. 229(a) of the Code beyond a reasonable doubt. She also told the jury that the evidence of the accused's consumption of alcohol and marijuana was relevant to his state of mind and had to be considered along with the rest of the evidence that could assist in determining his state of mind. She told the jury that intoxication is not a stand- alone defence and that a person who had the state of mind required for murder was guilty of murder even if that person was intoxicated. That instruction was both correct and necessary in light of defence counsel's closing argument. The trial judge's instruction that the Crown was not obliged to disprove intoxication was unnecessary as she had already told the jury that it was not a freestanding defence. In a perfect world, the trial judge would have avoided using language that had any possibility of suggesting to the jury that the Crown did not carry the onus on the issue of intent. However, a jury, listening to the instruction as a whole, would clearly understand that the Crown had to prove the requisite intent for murder, that the evidence of the accused's consumption of alcohol and marijuana was relevant to whether the [page229] Crown had proved the requisite intent and that even if the accused was under the influence of alcohol and marijuana, he was guilty of murder if he had the requisite intent.

The trial judge did not err in admitting evidence of the 1995 sexual assault. Identity was not the issue to which the evidence of the 1995 attack was directed. There was no question that the accused was involved in both incidents. The accused did not deny that he killed the victim. In addition, defence counsel virtually conceded that the accused made some form of advance that was rejected by the deceased shortly before the killing. The evidence was directed at one aspect of the actus reus of the murder charge: the alleged sexual assault or attempted sexual assault. The potential probative value of the evidence was captured by the following question: What was the likelihood that the accused who admittedly viciously attacked and sexually assaulted a young woman when rebuffed by her seven years earlier, and who admittedly viciously physically attacked this victim when rebuffed by her, also sexually assaulted or attempted to sexually assault this victim? A trial judge could reasonably conclude that despite the high potential to prejudice the accused's right to a fair trial, the probative value of the evidence of the 1995 attack outweighed that prejudicial potential. Depending on the issue to which similar fact evidence is directed, and the inference drawing process relied on to give that evidence probative value, the existence of other circumstantial evidence supporting the drawing of that inference can support the admissibility of similar fact evidence. In this case the inference sought to be drawn from the similar fact evidence was that the accused sexually assaulted or attempted to sexually assault the victim before he killed her. The other circumstantial evidence of sexual assault or attempted sexual assault enhanced the probative value of the similar fact evidence and was properly taken into account when deciding whether the similar fact evidence should be admitted.

APPEAL from the conviction entered by Ratushny J. of the Superior Court of Justice, sitting with a jury, dated June 17, 2004, for first degree murder.

Cases referred to R. v. Carpenter (No. 2), 1982 3308 (ON CA), [1982] O.J. No. 129, 142 D.L.R. (3d) 237, 1 C.C.C. (3d) 149, 31 C.R. (3d) 261 (C.A.); R. v. Dickinson, 1984 5690 (ON CA), [1984] O.J. No. 100, 4 O.A.C. 45, 40 C.R. (3d) 384 (C.A.); R. v. Handy, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57, 213 D.L.R. (4th) 385, 290 N.R. 1, 164 C.C.C. (3d) 481, 2002 SCC 56, 1 C.R. (6th) 203 (sub nom. R. v. H. (J.)), consd Other cases referred to R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, [1990] S.C.J. No. 31, 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. Harvey, [2002] 4 S.C.R. 311, [2002] S.C.J. No. 81, 169 C.C.C. (3d) 576, 313 N.R. 190, 2002 SCC 80, 7 C.R. (6th) 1, affg (2001), 2001 24137 (ON CA), 57 O.R. (3d) 296, [2001] O.J. No. 4749, 160 C.C.C. (3d) 52 (C.A.); R. v. Paul (2002), 2002 13259 (ON CA), 62 O.R. (3d) 617, [2002] O.J. No. 4733, 170 C.C.C. (3d) 107, 7 C.R. (6th) 30 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 229(a), 231 [as am.] Authorities referred to Hill, S. Casey, et al., Canadian Criminal Evidence, 4th ed., vol. 1 (Aurora, Ont.: Canada Law Book, 2003) Hoffmann, L.H."Similar Facts After Boardman" (1975) 91 Law Q. Rev. 193 Paciocco, David M., and Lee Stuesser, The Law of Evidence, 4th ed. (Toronto: Irwin Law, 2005) [page230]

James Foord, for appellant. C. Jane Arnup, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.:--

I Overview

[1] The appellant was charged with first degree murder. The Crown alleged that he murdered the victim after he sexually assaulted her or attempted to sexually assault her, thereby committing first degree murder as defined by s. 231(5) of the Criminal Code, R.S.C. 1985, c. C-46. The appellant conceded that he killed the victim. He argued, however, that the Crown had not proved beyond a reasonable doubt that he had the requisite intent for murder, and that the Crown had not proved beyond a reasonable doubt that he had sexually assaulted or attempted to sexually assault the victim immediately before killing her. The appellant argued that he should be convicted of manslaughter. The jury convicted the appellant of first degree murder.

[2] The appellant raises two issues on his appeal from that conviction. He alleges misdirection on the issue of intoxication. He also argues that the trial judge erred in admitting evidence of a sexual assault committed by the appellant several years before this homicide.

[3] I would dismiss the appeal. I doubt that the trial judge erred in her intoxication instruction; however, if there was an error, it did not prejudice the appellant. The trial judge properly considered the admissibility of the similar fact evidence. It was open to the trial judge to conclude that the probative value of that evidence warranted its admission despite its significant prejudicial potential.

II The Evidence

[4] The appellant and a friend met the victim and a friend by chance around 2:30 a.m. on an Ottawa street on June 1, 2002. The four young people talked and walked to a somewhat secluded area. Eventually, the appellant's friend and the victim's friend [page231] left together, leaving the appellant and the victim alone. The two walked toward a more secluded area along the river.

[5] The appellant and the victim ended up beside the river on a concrete slab that was used as a dock by kayakers. Physical evidence subsequently gathered on the concrete slab demonstrated that the appellant severely beat the victim. He hit her at least nine times on the head with a rock and rendered her unconscious. At least one of those blows was struck while the victim was laying on the concrete slab. The appellant dragged the victim's body across the slab and dumped her into the river. She was still alive when she was pushed into the river but eventually drowned. Her head injuries were sufficiently severe that they would have caused her death if she had not drowned. Her body was found in the river about 15 hours later.

[6] The appellant was arrested the day after the victim's body was found. When he was arrested, he had several relatively minor injuries on his face, hands and legs. These injuries suggested that the victim had put up a valiant fight for her life.

[7] As is often the case where the victim is killed, the Crown did not have direct evidence that the appellant sexually assaulted or attempted to sexually assault the victim immediately before he killed her. There was, however, circumstantial evidence supporting the Crown's position. When the victim's body was pulled from the water, she was naked from the waist down with the exception of a sock on one foot. Her underwear was found under a bench on the concrete slab where the appellant had beat the victim. Her pants were never found.

[8] The Crown also led the evidence of a witness who was camping near the area where the appellant killed the victim. This witness testified that at about 2:30 a.m. he heard a man and woman walking towards him chatting in a friendly manner. The two individuals walked past him and headed down a path that led to the concrete slab where the victim was beaten. Soon after the man and woman had passed him, at about 3:00 a.m., the witness heard a woman scream. He heard her say something like"Get off me" or "Get away from me". About one minute later, the witness heard a second scream and then heard the sound of a tree branch breaking. He heard nothing after this.

[9] The witness who saw the two individuals and heard the woman scream, could not identify the appellant. The evidence strongly supported the inference that the appellant and the victim were the two individuals that the witness saw headed down the path towards the concrete slab and that the screams he heard came from the victim. [page232]

[10] The victim did not have any injuries indicative of a sexual assault. No semen was found on the victim, the underwear, or at the scene of the homicide.

[11] The victim was 17 years old. She had no prior sexual experience. She was not physically attracted to the appellant and had told her friend that the appellant was "ugly". The victim had been drinking on the evening she was killed. Her post-mortem blood alcohol level was between .104 and .124.

[12] The appellant did not testify. There was evidence that he was drinking and smoking marijuana in the afternoon and evening of the homicide. There was no clear evidence as to how much the appellant drank or how much marijuana he consumed. The timing of the consumption of the alcohol and marijuana during the afternoon and evening before the homicide was also unclear. The trial judge determined that the evidence relating to drinking and the use of marijuana was sufficient to require an instruction as to the relevance of those factors in assessing the appellant's state of mind when he killed the victim.

[13] The Crown sought to adduce evidence of a sexual assault committed by the appellant in 1995. The Crown argued that this evidence constituted circumstantial evidence supporting the inference that the appellant had sexually assaulted or attempted to sexually assault the victim immediately before he killed her. The trial judge admitted this evidence for that purpose. As the appellant challenges that ruling, I will deal with the substance of this evidence when addressing that ground of appeal.

III The Alleged Misdirection in Relation to Intoxication

[14] When explaining the position of the parties, the trial judge told the jury: "The Crown does not have to disprove the intoxication defence beyond a reasonable doubt."

[15] Counsel for the appellant argues that this instruction misstates the burden of proof. He submits that the Crown carries the burden on the question of the appellant's state of mind at the time he killed the victim and that this burden of proof requires the Crown to prove that the appellant had the requisite intent even if he was under the influence of alcohol and marijuana.

[16] The above-quoted passage from the trial judge's instruction sounds alarm bells for those schooled in a long line of jurisprudence dealing with the relationship between evidence of drinking and the burden of proof on the issue of intent. To appreciate how the jury -- not a group of criminal lawyers, but [page233] a collection of reasonable laypersons -- would understand these instructions, one must put them in the context of the conduct of the trial.

[17] In his closing submissions, defence counsel said to the jury:

Her Honour will explain the defence of intoxication to you. The burden of proof is on the Crown to prove that the defence of intoxication does not exist. If you are left with a reasonable doubt because of the evidence of intoxication, then you must find the accused guilty of manslaughter.

[18] The Crown objected to this part of defence counsel's closing argument contending that while the Crown was obligated to prove the requisite mental state, it was not required to prove that the appellant was not intoxicated. The trial judge indicated that she would take care of the Crown's concerns in her instructions to the jury. Defence counsel made no comment and raised no objection after the trial judge had given the instruction that is now challenged.

[19] In her instructions, the trial judge told the jury that the Crown had to prove either of the mental states required for murder under s. 229(a) of the Criminal Code beyond a reasonable doubt. She also told the jury that the evidence of the appellant's consumption of alcohol and marijuana was relevant to his state of mind and had to be considered along with the rest of the evidence that could assist in determining his state of mind. She specifically tied the evidence of alcohol and marijuana consumption to the jury's consideration of whether it should infer that the appellant intended the natural consequences of his actions.

[20] The challenged passage from the instruction appears immediately following the trial judge's summary of the position of the Crown and defence on the question of intention. The trial judge drew a distinction between intoxication and the appellant's state of mind. She told the jury that intoxication was not a stand-alone defence and that a person who had the state of mind required for murder was guilty of murder even if that person was intoxicated. She said:

Intoxication that causes a person to cast off restraint and to act in a manner in which he would not act if sober is no excuse for committing an offence if he had the state of mind required to commit the offence. An intoxicated state of mind is, nonetheless, a state of mind.

[21] In this instruction, the trial judge noted that there was no such thing as the defence of intoxication and that the issue was the appellant's state of mind, not his sobriety. This instruction was both correct and necessary in light of defence counsel's closing argument.

[22] The trial judge's instruction that the Crown was not obliged to disprove intoxication was unnecessary in that she had already [page234] told the jury that intoxication was not a freestanding defence. In a perfect world, the trial judge would have avoided using language that had any possibility of suggesting to the jury that the Crown did not carry the onus on the issue of intent. However, perfection is not the standard against which jury instructions are measured.

[23] I have no doubt that a jury, listening to this instruction as a whole, would clearly understand three things: first, that the Crown had to prove the requisite intent for murder; second, that the evidence of the appellant's consumption of alcohol and marijuana was relevant to whether the Crown had proved the requisite intent; and third, that even if the appellant was under the influence of alcohol and marijuana, he was guilty of murder if he had the requisite intent. The instructions armed the jury with the information needed to understand the relationship between the evidence of intoxication and the question of whether the Crown had proved beyond a reasonable doubt that the appellant had the requisite intent for murder.

IV The Admissibility of the Similar Fact Evidence

(a) The evidence

[24] The similar fact evidence related to a sexual assault committed by the appellant in Hull, Québec in 1995, some seven years before the appellant killed the victim. There was no dispute as to the facts underlying the 1995 sexual assault. The appellant pleaded guilty to a charge of a sexual assault with a weapon in 1997 and received a three-year penitentiary sentence.

[25] The appellant met J.K., who was 21 years old at the time, in a nightclub in Hull at about 3:00 a.m. one morning. The appellant was with someone who knew J.K. The group drank and danced. J.K. became somewhat "tipsy".

[26] J.K. decided to leave the club and look for her friends. The appellant offered to give her a ride with his friends. They left the club together, ostensibly to search for the appellant's friends. When the appellant could not locate his friends immediately, J.K. decided to return to the club, but the appellant persuaded her to continue to look for his friends. Eventually, they found themselves at a secluded path. The appellant tried to convince J.K. to go down the path with him to look for his friends. She declined and the appellant went on his own. He returned saying that he had found his friends and that J.K. should come with him. He led her to a secluded, poorly lit parking lot with benches. As they sat, supposedly waiting for his friends, J.K. became nervous and [page235] decided to leave. The appellant sat on J.K.'s lap to prevent her from leaving and then attacked her.

[27] The appellant grabbed J.K. by the shoulders and forced her to the ground. He produced a knife and threatened to cut J.K.'s eyes out if she screamed. He also threatened to kill her. In the course of the attack, the appellant cut J.K.'s face and neck and severely beat her about the head and face. During the attack, he ripped off J.K.'s bra and shirt and tried to kiss her. J.K. resisted throughout. The appellant began to strangle J.K. and she complied with his demand that she remove her pants. The appellant pulled off J.K.'s underwear and forced his penis into her. J.K. was a virgin.

[28] After the assault, the appellant threatened J.K. and told her not to tell anyone. J.K. was so afraid that she agreed to share a cab with the appellant. The appellant left the cab first near his home and J.K. continued on to her home. She went to the hospital the next day.

(b) The trial judge's reasons

[29] The trial judge recognized that the evidence of the 1995 sexual attack was inadmissible unless the Crown could show that its probative value in relation to a fact in issue outweighed its potential to prejudice the appellant's right to a fair trial. The trial judge accurately identified the issue to which the evidence was directed; that is, whether the appellant had sexually assaulted or attempted to sexually assault the victim before he killed her.

[30] The trial judge also reviewed the similarities and dissimilarities between the evidence of the 1995 assault and the evidence surrounding this homicide. The trial judge referred specifically to the passage of time between the two events and to the fact that the Crown sought to introduce evidence of only one prior incident as pertinent to the probative value of the evidence.

[31] The trial judge recognized the potential moral and reasoning prejudice inherent in admitting evidence of the 1995 attack. She described the potential prejudice as "very high". The trial judge then turned to the probative value of the evidence:

The probative value of the similar fact evidence is also very high when considered in the context of the present case, even given the presence of some similarities that could be viewed as being non-distinctive or generic when looked at individually.

However, it is the Crown's circumstantial evidence that a sexual assault or an attempted sexual assault could have occurred before Ms. A. died that tips the balance, in my view, in that this crime scene evidence decreases the possibility that the similarities between Ms. A.'s and J.K.'s situations were only coincidental.

If this were a case where the Crown was relying on the similar fact evidence alone to support the inference that the Respondent sexually assaulted Ms. A. [page236] without having any other connecting evidence of there being a sexual assault on the night Ms. A. died, I would have more difficulty concluding, in the context of this case, that the Crown had proven, on a balance of probabilities, that the probative value of the similar fact evidence outweighed its prejudicial effect.

In the present case, however, it is not the similar fact evidence alone that bears the burden of the Crown's case with respect to a sexual assault or an attempted sexual assault having occurred.

I conclude, with reference to Handy at paras. 41 and 47, that, in the context of this case, the force of the similar circumstances defies coincidence or other innocent explanation, and the evidence of the Respondent's previous misconduct is so highly relevant and cogent that its probative value in the search for truth outweighs the potential for misuse.

(Emphasis added)

(c) Analysis

[32] Evidence of an accused's discreditable conduct other than conduct that falls within the four corners of the charges facing the accused is presumptively inadmissible. That evidence, sometimes referred to as similar fact evidence, will, however, be admissible if its probative value on a material fact in issue outweighs its potential prejudicial effect on the fairness of the trial: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57, 164 C.C.C. (3d) 481, at para. 55.

[33] The process of balancing probative value against prejudicial effect is the trial judge's responsibility. Appellate courts will defer to the trial judge's assessment of the comparative probative value and prejudicial effect of the proffered evidence unless an appellant can demonstrate that the result of the trial judge's analysis is unreasonable, or is undermined by a legal error or a misapprehension of material evidence: see R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, [1990] S.C.J. No. 31, 55 C.C.C. (3d) 1, at pp. 732-33 S.C.R., pp. 23-24 C.C.C.; R. v. Harvey, 2002 SCC 80, [2002] 4 S.C.R. 311, [2002] S.C.J. No. 81, 169 C.C.C. (3d) 576, affg (2001), 2001 24137 (ON CA), 57 O.R. (3d) 296, [2001] O.J. No. 4749, 160 C.C.C. (3d) 52 (C.A.), at para. 43; R. v. Handy, supra, at para. 153.

[34] Counsel for the appellant submitted that the trial judge's ruling that the probative value justified the admission of the evidence was unreasonable. He also argued that the trial judge made factual errors in outlining the similarities between the similar fact evidence and the evidence relating to the attack on this victim. Finally, the appellant argued that the trial judge made a legal error in holding that the probative value of the similar fact evidence was enhanced because there was other circumstantial evidence supporting the inference that the appellant had sexually assaulted this victim. [page237]

[35] The argument that the ruling is unreasonable is based on the claim that the scales of admissibility were so clearly tilted against receiving the evidence that any trial judge properly assessing probative value and prejudicial effect would have excluded the evidence. This is not an easy argument to successfully advance.

[36] The evaluation of the probative potential of similar fact evidence looks first at the issue to which the evidence is directed, and second at the reasoning process that gives the evidence relevance and probative value in respect of that issue. The evidence pertaining to the 1995 sexual assault was offered as circumstantial evidence that the appellant sexually assaulted or attempted to sexually assault this victim before killing her.

[37] The Crown argued that evidence that in 1995 the appellant met a young woman in a social setting who was previously unknown to him, took that woman to a secluded area after some social interaction, made advances towards her in that secluded area, then physically attacked and sexually assaulted her when the advances were rejected, supported the inference that in 2002, the appellant had also sexually assaulted this victim. This victim, like the victim in 1995, had just met the appellant in a social context, had engaged in some social interaction with him, had been taken by him to a secluded area, had rejected the appellant's advances and had been viciously beaten by the appellant.

[38] In assessing the potential probative value of the evidence, it is important to bear in mind that the events underlying the 1995 sexual assault were not challenged by the appellant in this trial. It was common ground that he was rebuffed by the victim in 1995, viciously attacked her and sexually assaulted her. It is equally important to bear in mind that at this trial, the defence virtually conceded that the appellant made some kind of advance towards the victim and that she rejected this advance. It was also acknowledged at this trial that the appellant viciously beat the victim.

[39] Identity was not the issue to which the evidence of the 1995 attack was directed. There was no question that the appellant was involved in both incidents. The evidence was directed at one aspect of the actus reus of the murder charge: the alleged sexual assault or attempted sexual assault. In considering the probative value of the evidence, it seems unhelpful to speak in terms of the possibility that the similarities between the two events were a result of coincidence. The potential probative value of the evidence in this case is captured by posing the following question:

-- What is the likelihood that the appellant who admittedly viciously physically attacked and sexually assaulted a [page238] young woman when rebuffed by her seven years earlier, and who admittedly viciously physically attacked this victim when rebuffed by her, also sexually assaulted or attempted to sexually assault this victim?

[40] Considering the issue to which the evidence was directed, and placing the evidence in the context of the trial as a whole, I am satisfied that a trial judge could reasonably conclude that despite the high potential to prejudice the appellant's right to a fair trial, the probative value of the evidence of the 1995 attack outweighed that prejudicial potential.

[41] The two alleged factual errors arise out of the trial judge's description of the similarities between the similar fact evidence and this event. The trial judge said:

He [the appellant] sought out a young woman at a social occasion, whom he had never met before, lured her to a secluded area where he could make sexual advances towards her away from the scrutiny of others . . . .

[42] Counsel contends that there is no evidence that the appellant sought out this victim or that he lured her to a secluded area. Counsel submits that the evidence demonstrates that they met by chance in a secluded area.

[43] I disagree with the appellant's contention that there was no evidence that the appellant lured the victim to a secluded area. They did meet in a somewhat secluded area; however, before attacking her, he took her to a more secluded area. On this evidence, it was open to the trial judge to find that both this event and the 1995 event involved a luring of the victims to secluded areas.

[44] I think counsel is correct when he asserts that the evidence does not support the conclusion that the appellant "sought out" this victim. They did meet by chance; however, once they met, the appellant certainly focused his attention on this victim. I do not think that the trial judge's misdescription of how the appellant and the victim initially met was of any significance to her ruling that the evidence should be received. Certainly, this minor error falls far below the kind of material misapprehension of relevant evidence needed to justify a reversal of that ruling.

[45] I come now to the final argument made by counsel for the appellant. He submits that the existence of a body of circumstantial evidence independent of the similar fact evidence which supports the inference that the appellant sexually assaulted the victim cannot enhance the probative value of the similar fact evidence and should not have been used for that purpose by the trial judge. Counsel draws a distinction between using other evidence that the appellant sexually assaulted the victim to enhance the [page239] probative value of the similar fact evidence and using that evidence to require a lower level of probative value to admit the evidence of the 1995 attack. Counsel argues that the former constitutes an error in law while the latter is an appropriate approach to the admissibility of similar fact evidence.

[46] While counsel's submission has some initial logical attraction, the distinction drawn by him is ultimately not tenable. There is no functional difference insofar as the admissibility of the similar fact evidence is concerned between using the other evidence to increase the probative value of the similar fact evidence and using the other evidence to lower the level of probative value needed to sustain admissibility. Both exercises tip the evidentiary scales in favour of admitting the similar fact evidence.

[47] I read the passages from the trial judge's reasons set out above, in para. 31, as holding that the other reliable evidence that the victim was sexually assaulted rendered the drawing of the inference of sexual assault from the evidence of the 1995 incident easier, or safer, than it would have been had the evidence of the 1995 incident stood alone. This analysis is consistent with the proper approach to circumstantial evidence that requires that its cogency be assessed in the context of all of the evidence relevant to the particular inference. The trial judge's analysis also finds support in case law from this court. In R. v. Carpenter (No. 2), 1982 3308 (ON CA), [1982] O.J. No. 129, 1 C.C.C. (3d) 149 (C.A.), the court considered whether on an arson charge the trial judge had properly admitted evidence of fires at two other properties owned by the appellant. The evidence was offered to support the Crown's position that the fires were not accidental. Grange J.A., for the court, said at p. 156 C.C.C.:

The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence. Here accident is very much in issue. Counsel for the respondent argued forcefully and very ably that the fire was of undetermined origin and not shown to be incendiary.

[48] This passage in Carpenter was quoted with approval by Binnie J. in R. v. Handy, supra, at para. 78.

[49] In R. v. Dickinson, 1984 5690 (ON CA), [1984] O.J. No. 100, 40 C.R. (3d) 384 (C.A.), Martin J.A. quoted with approval, at p. 389 C.R., a passage from L.H. Hoffmann in"Similar Facts After Boardman" (1975) 91 Law Q. Rev. 193 at p. 201:

The same similar fact evidence may have different degrees of probative strength and so be admissible or inadmissible, according to the nature of the other evidence and the issues which it raises.

(Emphasis in original) [page240]

[50] Martin J.A. went on to comment, at p. 389 C.R.:

Where the 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.

[51] I think these authorities establish that depending on the issue to which the similar fact evidence is directed, and the inference drawing process relied on to give that evidence probative value, the existence of other circumstantial evidence supporting the drawing of that inference can support the admissibility of the similar fact evidence.

[52] I note that this court has questioned whether evidence connecting an accused to the crime charged can enhance the probative value of similar fact evidence offered on the issue of identity: see R. v. Paul (2002), 2002 13259 (ON CA), 62 O.R. (3d) 617, [2002] O.J. No. 4733, 170 C.C.C. (3d) 107 (C.A.), at para. 37. In S. Casey Hill et al., Canadian Criminal Evidence, 4th ed., vol. 1 (Aurora, Ont.: Canada Law Book, 2003) at para. 10:90.10, the authors note that other evidence connecting an accused to a crime may not augment the probative value of similar fact evidence offered to prove identity, because the probative value of similar fact evidence offered to prove identity depends first and foremost on the inference that the acts in question were committed by the same person. Circumstantial evidence, no matter how cogent, that an accused committed one of the acts adds no force to the inference that the same person committed both of the acts: see David M. Paciocco and Lee Stuesser, The Law of Evidence, 4th ed. (Toronto: Irwin Law, 2005) at p. 72.

[53] I agree with the commentators that other circumstantial evidence will not necessarily increase the probative value of similar fact evidence. The effect of the other evidence will depend on the issue to which the similar fact evidence is directed and the nature of the inference that the Crown seeks to draw from the similar fact evidence. In this case, the similar fact evidence was offered to support the inference that the appellant sexually assaulted or attempted to sexually assault the victim before he killed her. Other evidence, apart from the similar fact evidence supporting the inference that he sexually assaulted the victim, could facilitate drawing the inference of a sexual assault from the similar fact evidence. Viewed this way, the other circumstantial evidence enhanced the probative value of the similar fact evidence and was properly taken into account by the trial judge in deciding whether the similar fact evidence should be received.

[54] I would dismiss the appeal.

Appeal dismissed.