R. v. Johnson, 2010 ONCA 646

CITATION: R. v. Johnson, 2010 ONCA 646

DATE: 20101004

DOCKET: C49743

COURT OF APPEAL FOR ONTARIO

Rosenberg, Rouleau and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kristin Johnson

Appellant

Delmar Doucette and Adriel Weaver, for the appellant

Alex Alvaro, for the respondent

Heard: June 16 and 17, 2010

On appeal from the conviction entered by Justice J.A. Desotti of the Superior Court of Justice, sitting with a jury, dated February 29, 2008.

Rouleau J.A.:

OVERVIEW

[1] Katrina Kiyoshk disappeared in the early hours of August 8, 2005 on Walpole Island First Nation Reserve. On September 1, 2005, her body was found at the edge of a marsh near Dynamite Cut Road.

[2] The victim was last seen entering a car with two men: Nathaniel Shipman, and the appellant, Kristin Johnson. Following a police investigation, both men were arrested. Nathaniel Shipman pled guilty to being an accessory after the fact to murder and identified the appellant as the victim’s killer. The appellant denied any involvement.

[3] Following a trial before Desotti J., sitting with a jury, the appellant was acquitted of first degree murder, but convicted of second degree murder, and sentenced to life imprisonment without the possibility of parole for fourteen years.

[4] In this court, the appellant raises ten grounds of appeal related to the admissibility of similar fact evidence, improper conduct by the trial Crown, reasonable apprehension of bias, improper jury vetting and other matters.

[5] For the reasons that follow, I would allow the appeal and order a new trial. Although I am troubled by several of the issues raised by the appellant, they need not be addressed in these reasons. In my view, the improper admission of two pieces of similar fact evidence is, standing alone, sufficient to warrant a new trial. Consequently, these reasons will focus on this ground of appeal.

FACTS

I. THE NIGHT OF AUGUST 7 AND THE DISCOVERY OF THE KILLING

[6] The appellant and Nathaniel Shipman were friends, and socialized regularly. They often would “cruise” around Walpole Island in the appellant’s car while drinking heavily. “Cruising” was a common form of socializing for many residents of Walpole Island.

[7] The victim, Katrina Kiyoshk, who had just turned 17, was also an acquaintance of Nathaniel Shipman. The two moved in the same circle of friends.

[8] During the late night of August 7, 2005, the victim attended a party at Garrick Shipman’s home, where she became intoxicated. The appellant and Nathaniel Shipman had been cruising around Walpole Island and eventually ended up outside of Garrick Shipman’s house. By this time the appellant was also intoxicated.

[9] The victim left the party with the appellant and Nathaniel Shipman. The group began driving around the island, ultimately arriving at an area known as the Sand Pits. While the evidence differed as to the exact sequence of events at the Sand Pits, it was acknowledged that upon their arrival, both men had sex with the victim.

[10] What happened next was the subject of dispute, and formed the focus of the appellant’s trial.

[11] What is clear is that some time following the events at the Sand Pits, the victim died. However, her body was not discovered for almost a month. It was not uncommon for the victim to stay away from her home for extended periods of time. As a result, when the victim did not return home on August 8, her family was not seriously concerned. About one week later, the victim’s sister began to worry, and contacted police. However, when police came to interview her, she was inebriated and unable to provide them with any useful information. About a week after that, on August 25, the victim’s mother also became concerned and filed an official missing persons report.

[12] On September 1, 2005, two men from Walpole Island found the victim’s body at the edge of a marsh, near Dynamite Cut Road. It appeared that the body had been there for some time. Subsequent forensic analysis was unable to determine the cause of death, or accurately determine when death occurred.

II. THE POLICE INVESTIGATION

[13] Following the discovery of the victim’s body, the Ontario Provincial Police began an investigation into her death. Witnesses informed police that the victim was seen entering a car outside of Garrick Shipman’s on the night of the August 7 with the appellant and Nathaniel Shipman. On September 11, 2005, Nathaniel Shipman was questioned by the Ontario Provincial Police about the victim’s disappearance. During this questioning, Mr. Shipman became aware that the police had located the victim’s body and that they considered him a suspect in the killing.

[14] Over the course of the day, Nathaniel Shipman made several formal statements to the police, in addition to various utterances. During his first statement, which was under oath and videotaped, he was confronted with evidence from other witnesses who claimed to have seen the victim get into the car with him and the appellant outside of Garrick Shipman’s. He admitted to having picked her up, but said that he dropped her off at her home 20-30 minutes later.

[15] Following the first interview, Constable Phillip George offered to give Mr. Shipman a ride home. Constable George and Mr. Shipman knew one another from a previous investigation into the death of Mr. Shipman’s younger sister in an automobile accident. By all accounts, Nathaniel Shipman trusted Constable George.

[16] While driving, Constable George told Mr. Shipman that he believed he knew more about the victim’s death than he had admitted during his interview. Mr. Shipman eventually stated that the appellant had killed the victim. Mr. Shipman was then brought back to the O.P.P. detachment, where he provided a further videotaped statement implicating the appellant. He also admitted that after the killing, he assisted the appellant in moving the victim’s body. He maintained, however, that he did not play a role in the killing itself.

[17] Following this statement, Nathaniel Shipman was charged with first degree murder. He subsequently pled guilty to being an accessory after the fact to murder.

[18] On September 11, 2005, the O.P.P. also attended the appellant’s residence to speak with him about the victim’s death. Following Nathaniel Shipman’s incriminating statement, the police arrested the appellant. Upon being advised of the charge, the appellant immediately responded, “It wasn’t me, I didn’t do it.” He was then brought to the police detachment where he was interrogated into the early hours of September 12th.

[19] Prior to the interrogation, the appellant spoke with duty counsel who advised him not to make any statement to the police. The appellant told police that he had received this advice, and that he would be remaining silent. While police continued to question the appellant for several hours, he largely declined to make any substantive statement. However, he did not remain entirely silent.

[20] In addition to repeatedly stating that he had been advised not to answer questions, the appellant commented on his relationship with Nathaniel Shipman, his own good character, the fact that when he drank he could become temperamental or black out, and that he was innocent. He also made two statements that he would subsequently admit were lies. First, the appellant said that he had never had sex with the victim. Second, he asserted that, due to his intoxication, he had no memory of the night in question.

[21] In response to the appellant’s comments about how drinking would sometimes lead him to black out or suffer from memory loss, the police suggested to him that perhaps he had killed the victim and simply could not remember it. The appellant’s response was unclear. Although he maintained that he did not remember the events of the night, he maintained that had he killed the victim, he would have recalled doing so.

[22] The appellant was charged with first degree murder. The voluntariness of his statements to police was ultimately not an issue at trial.

III. THE JURY VETTING

[23] It appears that the Sarnia Crown Attorney’s Office had a standing practice to request that local police perform searches with the Canadian Police Information Centre (CPIC) to determine whether prospective jurors had criminal records. Where the CPIC checks recorded a “hit” with respect to a name on the jury roll, police would place a “NO” notation next to the name.

[24] The Crown’s office followed this practice prior to the appellant’s trial. It obtained a notated list of potential jurors. However, this list was not disclosed to the counsel for the appellant, nor were they informed that jury vetting had occurred.

[25] Following the completion of the trial, the use of police services to screen potential jurors came to the attention of the media, and ultimately resulted in an investigation by Ontario’s Information and Privacy Commissioner: see PO-2826 – Excessive Background Checks Conducted on Prospective Jurors: A Special Investigation Report (Toronto: Information and Privacy Commissioner of Ontario, 2009). As a result of this publicity, counsel for the appellant on this appeal made inquiries with the Crown, and the above-noted conduct was disclosed.

IV. THE EVENTS OF AUGUST 7-8, 2005

[26] Both Nathaniel Shipman and the appellant testified at trial. Each described the events of August 7-8, 2005. Their respective version of events differed dramatically.

A. Nathaniel Shipman’s Version of Events

[27] According to Nathaniel Shipman, the appellant picked him up in the late afternoon of August 7, and the two cruised around Walpole Island for a number of hours. At some point Nathaniel Shipman took over driving. The two men arrived at Garrick Shipman’s home just as it was starting to become dark outside. Both the victim and another woman, Carmen Dodge, got into the car.

[28] After dropping Ms. Dodge off at her home, the remaining three passengers continued to cruise around the island, eventually ending up at the Sand Pits. While the appellant remained inside the car, Nathaniel Shipman and the victim got out, and proceeded to have intercourse.

[29] Afterwards, the appellant expressed a desire to have sex with the victim. She did not want to have sex in front of Nathaniel Shipman, and so she and the appellant went behind the car while Nathaniel Shipman sat in the front seat. The victim and the appellant then had sex.

[30] After approximately 30-45 minutes at the Sand Pits, the three left the area. Nathaniel Shipman drove the car, the appellant sat in the passenger side seat, and the victim sat on the appellant’s lap. She whispered into the appellant’s ear while Nathaniel Shipman drove.

[31] The appellant then directed Nathaniel Shipman to drive to Dynamite Cut Road. They arrived there about or shortly after dusk. The appellant and the victim got out of the car, while Nathaniel Shipman remained inside. Nathaniel Shipman did not have a clear view of his companions, but it looked to him as though they were again engaging in intercourse on the ground outside of the car.

[32] After some time, Nathaniel Shipman heard what he described as a “goggling” sound, which made him get out of the car to get a better view of the victim and the appellant. He saw that the appellant was on top of the victim and had her in a “bear hug”. Initially, he believed that the two were still having sex, but within a few moments, he realized that something was wrong, and that the victim was dead.

[33] Nathaniel Shipman saw the appellant move the victim’s body into the back seat of the car. At the appellant’s direction, Nathaniel Shipman drove further down Dynamite Cut Road. The appellant then removed the victim’s body and carried it down a trail while Nathaniel Shipman remained with the car. After a few minutes, the appellant returned without the victim. The appellant told Nathaniel Shipman not to “say a word.”

[34] Nathaniel Shipman then drove back to his home with the appellant. Nathaniel Shipman got out of the car, and the appellant drove away.

[35] Nathaniel Shipman testified that subsequently, on two separate occasions, the appellant came to his home and threatened that if he told anyone about what happened, something would happen to him or his family.

B. The Appellant’s Version of Events

[36] The appellant testified that he and Nathaniel Shipman had been cruising around Walpole Island on August 7, and arrived at Garrick Shipman’s house at around 7 p.m. The appellant was extremely intoxicated at this point and did not recall the victim getting into the car. His next memory was being at the Sand Pits.

[37] He recalled having sex with the victim on the ground outside of the car. When he was done, he moved away to urinate. When he turned back towards the car, he saw the victim on the ground, crying, and Nathaniel Shipman walking back to the car. The victim said “fuck you” to Nathaniel Shipman. The appellant asked her why she was upset, but she did not respond.

[38] The appellant stated that he never saw Nathaniel Shipman and the victim have sex.

[39] All three individuals returned to the car. Nathaniel Shipman drove, while the appellant sat in the front passenger seat. The victim sat in the back seat of the car. From this position, the victim attempted to change the station that the car radio was tuned to. Nathaniel Shipman objected to this, and the two began to argue. Frustrated by this, the appellant asked Nathaniel Shipman to drop him off at his aunt Joyce’s home, where he was living at the time. Nathaniel Shipman did so and then drove off with the victim in the car.

[40] The appellant stated that Nathaniel Shipman returned his car to him sometime in the morning of August 8. When pressed during cross-examination, he estimated that it was dropped off sometime around 10 am.

V. THE CROWN’S CROSS-EXAMINATION OF THE APPELLANT

[41] The Crown cross-examined the appellant extensively on the differences between his trial testimony, and what he told police in September 2005. Specifically, the Crown challenged the appellant’s assertion that between his police interrogation in 2005, and his testimony in 2008, he had recovered memories of the events of August 7-8, 2005. The Crown also questioned the appellant concerning his admission that, contrary to what he had told police in 2005, he had, in fact, had sexual intercourse with the victim.

[42] When questioning the appellant about his recovered memories, the Crown pressed him on his failure to have come forth to deny the accusations. Specifically, the Crown asked the appellant, “This is two years ago and you never said anything until today?” and later in the cross-examination asked:

Q. So, you think it was better for your children for you to sit in jail for two years thinking you were a murderer without telling anyone until today that you weren’t?

[43] Defence counsel objected after this second question, and the trial judge directed the Crown to discontinue this line of questioning.

VI. ALIBI, REBUTTAL, AND THE EX PARTE COMMUNICATION

[44] The defence closed its case on Wednesday, February 13, 2008. The Crown immediately gave notice of the possibility that it would be calling reply evidence. As this was the first time that it had heard the appellant’s version of the events, the Crown indicated that it required some time to conduct investigations.

[45] Counsel for the appellant at trial requested disclosure of any reply evidence as soon as possible, to allow for time to prepare. He expressed concern that the Crown might be seeking to split its case or to contradict the appellant on collateral issues.

[46] The Crown took the position that the appellant’s testimony constituted an alibi, which the appellant had failed to disclose to the authorities in a timely manner. In the Crown’s view, the appellant effectively testified that he was at his aunt’s house in the early morning of August 8, when the victim was killed, and as such, could not have been the killer. The Crown sought an instruction that the jury could draw an adverse inference for the failure to disclose this alibi.

[47] Defence counsel disagreed with this characterization of the appellant’s testimony. The defence`s theory of the case was not that the victim was killed in the early morning of August 8 by Nathaniel Shipman, or that there was independent evidence that confirmed that the appellant was elsewhere at the time of the killing. They took no position as to when the killing occurred, or who was responsible for it. The defence position was simply that when the appellant had last seen the victim, she was alive. This was all that the appellant had testified to.

[48] Pre-charge discussions continued throughout the day on Thursday, February 14. Before leaving for the weekend, the trial judge expressed a tentative opinion that the appellant’s testimony did not constitute alibi evidence:

The alibi, I am having a tough time with that. I just do not see it as necessarily falling within that, the concept of alibi and it may be, and I am just going to think about this a little more because of the timeframe.

[49] The court regularly took Fridays off, and the following Monday was Family Day. Therefore, the parties expected to deal next with the alibi issue and any proposed reply evidence on Tuesday, February 19, 2008.

[50] Over the course of the weekend, the trial judge changed his mind and reached the conclusion that the appellant had given an alibi during his testimony.

[51] On Sunday, February 17, at approximately 10 p.m., the trial judge personally contacted the Crown Attorney for Sarnia, not the Assistant Crown Attorney assigned to the case, and informed her that he had concluded that the defendant had raised a defence in the nature of alibi.

[52] No phone call to defence counsel was made at this time. Rather, on the following Tuesday, before the start of court, the trial judge met with the Crown and defence counsel in chambers, and informed the latter of the weekend’s phone call. The trial judge subsequently explained that he had contacted the Crown in order to ensure that he had not misled it as to his view of the evidence while it was conducting its investigation for reply evidence.

[53] The following day, the appellant applied for a mistrial on the basis of reasonable apprehension of bias. Before submissions were heard, the trial judge read a prepared statement of his reasons for contacting the Crown attorney on the preceding weekend. He then heard submissions, and dismissed the application “for reasons expressed”.

[54] The appellant then sought an adjournment to better prepare for argument on the admissibility of the reply evidence, disclosure having only recently been made. The trial judge gave him until the afternoon to prepare. Following submissions, the trial judge ruled the Crown’s proposed reply evidence to be admissible.

[55] The Crown’s main reply witness was Candace Shipman. She had also been at Garrick Shipman’s house on the night of August 7, 2005, and had slept in Garrick’s truck until the morning of August 8. She testified that sometime around 6:30 or 7:00 a.m. she saw the appellant’s vehicle pull up by the residence and saw the appellant get out.

[56] The Crown’s purpose in introducing this evidence was to rebut the appellant’s story that Nathaniel Shipman had the car in the early morning hours of August 8, and only returned it to the appellant later in the morning.

[57] Candace Shipman had earlier provided two statements to the police: one on September 5, 2005, and the second on September 15, 2005. In the latter statement she told police that she had seen the appellant’s car at Garrick Shipman’s house on the morning of August 8, but made no mention of seeing the appellant there. When confronted with this by defence counsel during cross-examination, she explained that no one had asked her whether she saw the appellant there that morning or not.

VII. THE SIMILAR FACT EVIDENCE

[58] During its case in chief, the Crown was permitted to introduce similar fact evidence in the form of two previous incidents involving the appellant.

A. The Black Shack Road Incident

[59] The Crown called Shawn Soney to testify about an incident that occurred in the summer of 2005. He testified that he had little recollection of the incident and therefore testified with the assistance of his statement to the police. Against that background, Mr. Soney stated that he and the appellant had been driving around Walpole Island with Michelle Aquash, an acquaintance who wanted a ride to purchase cigarettes and beer. After purchasing these items, as well as additional gas for the car, the three continued to drive around the area.

[60] The appellant eventually stopped the car on Black Shack Road. While Ms. Aquash remained in the car, the appellant and Mr. Soney got out of the vehicle. The appellant told Mr. Soney that he wanted “to do” Ms. Aquash, meaning beat her up. Mr. Soney told him that he could not do that. The appellant then began to cry.

[61] Mr. Soney testified that due to heavy drinking, the appellant appeared “blacked out” during this conversation. He also described the appellant as depressed, and even suicidal. He explained that the appellant had recently broken up with his girlfriend. His evidence was that there had been no attempt to have sex, beat up or otherwise touch Ms. Aquash.

[62] The appellant’s version of this incident was quite different. He stated that Ms. Aquash had asked for a ride in order to go to the bank and then to buy some beer. The appellant agreed to give her a ride if she would pay for the gas. While initially she agreed, she later refused to pay.

[63] Out of anger, the appellant drove out to Black Shack Road. His intention was to take the beer that she had purchased, and leave her stranded on the road. Mr. Soney convinced him not to do so and they drove back to the community without incident.

B. The White Truck Incident

[64] Clarissa Shipman, the victim’s younger cousin who was 14 years old in the summer of 2005, was called to testify about an incident involving the appellant and the victim that occurred prior to the victim’s disappearance. In a voir dire, Ms. Shipman said that it had occurred in the fall of 2004, but in her trial testimony she placed it in late spring 2005. In many respects she was unable to recall certain details of the white truck incident that one would expect her to have remembered. She equivocated on other details and she was inconsistent on yet others.

[65] The essence of her testimony was that she, the appellant, the victim, Briana Aquash, and a man who she did not recognize were all driving around in the appellant’s white truck. The victim sat in the front between the appellant and the other man. Briana Aquash and Clarissa Shipman were seated in the rear. The victim and Briana Aquash began to fight, which annoyed the appellant.

[66] The appellant demanded that the two women stop fighting. When they did not, the appellant stopped the car, grabbed the victim, bit her, pulled her by the hair, and threw her on the ground. He asked her whether “she liked it rough” and was going to drive away without her. However, when the victim asked to be let back in the car, the appellant acquiesced.

[67] The appellant testified as to this incident during his evidence. He stated that the event occurred in the fall of 2004, and that Clarissa Shipman was not present. He confirmed the presence of Ms. Aquash and the victim, and identified the other man as “Chad”. When the two women began to fight, he became frustrated, pulled the victim out of the vehicle and told her that she would have to walk back unless she stopped fighting. When she promised that she would no longer fight with Briana Aquash, the appellant let her back into the vehicle.

[68] The appellant denied pulling the victim by the hair, biting her, asking whether she “liked it rough” or throwing her to the ground.

VIII. THE CROWN’S CLOSING ARGUMENT

[69] An important theme in the Crown’s closing argument was that the appellant did not react as an innocent person would when, during the police interrogation, he was confronted with Nathaniel Shipman’s police statement.

[70] During a pre-trial application, the trial judge ruled that “the jury cannot use the silence of the accused during his videotaped statement to draw an adverse inference when the accused exercised his right to remain silent.” Notwithstanding this ruling, the Crown made the following comments to the jury:

[Y]ou heard that during the course of the interview Nate [Shipman] is actually brought in to see him, Nate his friend. And [the appellant] doesn’t say a word…. Well, put yourself there then. And if they told you your good friend just said you murdered someone and that person was brought in, you don’t think you’d go, ‘What are you talking about? I didn’t do that.’ Isn’t that the first thing you’re going to do?

[71] The defence objected to this aspect of the Crown’s closing address. Not only did these comments undermine the appellant’s right to silence, they were also inaccurate; at the time of his arrest, the appellant explicitly asserted his innocence.[^1]

IX. THE CHARGE TO THE JURY

[72] The trial judge charged the jury over the course of approximately three hours. During his charge, he instructed the jury on their duties as jurors, as well as the law that they were to apply. He also engaged in a review of the evidence that had been adduced during the trial.

[73] Prior to reviewing the theories of the Crown and the defence, the trial judge provided an instruction to the jury with respect to the rule from Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.). Browne v. Dunn provides that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, out of fairness, the witness is to be given the opportunity to address the contradictory evidence in cross-examination.

[74] In the view of the trial judge, defence counsel violated the rule ten times with respect to Nathaniel Shipman, and four times with respect to Shawn Soney by adducing evidence from the appellant that contradicted particular aspects of their testimony. The trial judge reviewed the evidence on each of these points, and instructed the jury that they could consider the failure to put the appellant’s version of events to these two witnesses “when weighing the evidence of the accused,” although this did not “necessitate an adverse inference in respect of the credibility of the accused.”

GROUNDS OF APPEAL

[75] The appellant raises the following grounds of appeal:

i) The trial judge erred in characterizing the appellant’s defence as an alibi, and instructing the jury that they could draw an adverse inference from the lack of early notice to the police;

ii) The trial judge improperly permitted the Crown to call reply evidence to rebut the “alibi” defence;

iii) The trial judge exhibited a reasonable apprehension of bias;

iv) The Crown’s cross-examination of the appellant undermined his right to silence;

v) The Crown’s closing address to the jury undermined the appellant’s right to a fair trial;

vi) The trial judge failed to adequately instruct the jury on the appellant’s right to silence;

vii) The trial judge erroneously instructed the jury that the appellant had violated the rule in Browne v. Dunn;

viii) The trial judge failed to provide the jury with an adequate instruction on the effect of prior inconsistent statements made under oath;

ix) The trial judge erred in allowing the Crown to introduce similar fact evidence; and

x) The Crown engaged in secret jury vetting, which undermined the appearance of trial fairness.

ANALYSIS

[76] On appeal, the Crown conceded that errors were made. For example, the Crown acknowledged that the trial judge’s ex parte communication to the Crown Attorney for Sarnia was improper and ill-advised but, in the Crown’s view, it did not result in a reasonable apprehension of bias.

[77] The Crown also recognized that the trial Crown’s cross-examination of the appellant and the Crown’s closing address, particularly with respect to the appellant’s right to silence, were in some respects inappropriate. However, in the Crown’s submission, the harm caused was inconsequential.

[78] Because I consider the ninth ground of appeal, the admission of the similar fact evidence, to be dispositive of the appeal, I need not rule on the impact of these acknowledged errors and need not address the other grounds of appeal raised by the appellant. By failing to address these, I should not be taken as accepting that these grounds of appeal are without merit or inconsequential. Several of the grounds individually and collectively are of concern. However, because they primarily relate to how the trial was conducted, and I have concluded that a new trial is necessary, nothing would be gained by ruling on them. The jury vetting, alibi and reply evidence issues will not arise at the new trial and the cross-examination and jury instructions will inevitably be different depending on how the new trial unfolds.

[79] To the extent that the Browne v. Dunn issue might arise during a new trial, I would simply note the following: The rule is one of fairness, and is not absolute. Its application should be determined according to the circumstances of each case. Counsel should not necessarily be obliged to plod through a witness’ evidence in-chief, putting him or her on notice of every detail that they do not accept: see R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 44 O.R. (3d) 628 (C.A.), at pp. 636-37; R. v. Giroux (2006), 2006 CanLII 10736 (ON CA), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 42. A pragmatic approach to the rule is most appropriate.

THE SIMILAR FACT EVIDENCE

[80] Before turning to the merits of the similar fact evidence ground of appeal I will first briefly review the principles that underlie the similar fact evidence rule and then outline the test to be applied by a trial judge when considering the admissibility of similar fact evidence.

I. GENERAL PRINCIPLES

[81] The fundamental rule that underpins the law of evidence in Canada is that all evidence that is logically probative to some material issue at trial is relevant, and therefore admissible unless excluded by some particular rule of law: R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, at p. 40; Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, at p. 201.

[82] However, evidence that is relevant may still be inadmissible if it is subject to a specific exclusionary rule. Underlying many particular exclusionary rules is the broad principle that where the prejudicial effect of admitting otherwise relevant evidence would exceed its probative value, it is inadmissible: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at pp. 736-740; R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525, at p. 552.

[83] The bad character evidence rule is an example of an exclusionary rule that rests upon this general principle. Evidence of the accused’s bad character cannot be adduced simply to show that the accused is the sort of person likely to commit the offence charged. While this evidence might arguably be relevant, it is inherently prejudicial when used in this fashion: Morris, at pp. 201-202; R. v. G.(S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at para 63.

[84] One particularly prejudicial form of bad character evidence is evidence that establishes past criminal conduct on the part of the accused that does not form the basis of the charges before the court. This type of past misconduct evidence has been identified as raising two forms of prejudice that will generally outweigh any probative value that might exist in the evidence itself. They are commonly referred to as moral prejudice and reasoning prejudice: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31, 139-147.

[85] Moral prejudice refers to the possibility that a jury, presented with evidence of uncharged misconduct, might choose to convict an accused person for the crimes charged, not because they are satisfied beyond a reasonable doubt that the charges have been proven, but as substitute punishment for the uncharged misconduct: R. v. D.(L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, at p. 128. Even where a jury does not follow this explicit line of reasoning, they might still convict based on a belief that the accused is generally the kind of person likely to commit crimes, rather than on the basis of any particular evidence showing the accused to have committed the specific crime charged: Handy, at para. 139.

[86] Reasoning prejudice, on the other hand, refers to the distracting nature of past misconduct evidence. Rather than focusing the trial on the question of whether the charges have been proven by the Crown, past misconduct evidence risks distracting a jury with evidence of other criminal conduct: D. (L.E.), at p. 128; Handy, at para. 144.

[87] Evidence that tends to prove the commission of uncharged criminal acts will normally appear much like the evidence adduced to prove the commission of charged criminal conduct. Excessive court time devoted to proof of extraneous criminal conduct might well distract the jury from their ultimate task of considering whether the crimes that have actually been charged by the Crown have been proven beyond a reasonable doubt.

II. ADMISSIBILITY OF SIMILAR FACTS

[88] Three basic principles of evidence – relevance, balancing probative and prejudicial impact, and the prohibition against bad character evidence – underpin the modern doctrine of ‘similar fact evidence’. The similar fact evidence rule is really an exception to the exclusionary rule related to bad character evidence. It permits the introduction of evidence demonstrating uncharged misconduct on the part of the accused where, due to its particular characteristics, its probative value exceeds the prejudicial effect normally associated with bad character evidence.

[89] In 2002, the Supreme Court of Canada released its decision in Handy, which rationalized the law of similar fact evidence in Canada and provided critical guidance to trial judges on how to determine whether the proposed similar fact evidence is to be admitted under a principled framework. At the core of this framework is a balancing between prejudice and probative value.

A. Threshold Matters

[90] Before engaging in any balancing, the trial judge must first determine the threshold question of whether the presumptive exclusionary rule applies. The trial judge must determine whether the evidence in question is “discreditable” to the accused, in the sense that an ordinary person would disapprove of their conduct: Handy, at para. 34; S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 4th ed. Loose-leaf (Aurora: Canada Law Book, 2003), at para. 10:40.10.10. If the evidence is not discreditable, the bad character justification for the exclusionary rule is never engaged in the first place. The evidence, if relevant, will be admissible, unless excluded by some other rule.

[91] The trial judge must also determine whether there is some evidentiary link between the similar acts and the accused. Where there is no evidence connecting the accused to the similar fact evidence itself, the evidence is irrelevant and inadmissible: Sweitzer v. The Queen, 1982 CanLII 23 (SCC), [1982] 1 S.C.R. 949, at p. 954.

[92] Once the evidence falls within the exclusionary rule and there is some evidence that links the accused to the acts in question, the Crown bears the onus of establishing, on a balance of probabilities, that the probative value of the similar fact evidence outweighs its prejudicial effect. It is impossible to measure probative value without first understanding how the proposed evidence might be relevant. Thus, to meet their burden, the Crown must identify a matter in issue that the similar fact evidence is relevant to. As Binnie J. explained in Handy at para. 27, “The contest […] is all about inferences.” It is therefore incumbent on the Crown to identify a series of inferences that it asks the trier of fact to draw other than that the accused is merely of bad character and therefore more likely to have committed the offence: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 18.

[93] Because the probative force of the inferences that the Crown asks the jury to draw may be inexorably linked with the reliability of the proposed evidence, the trial judge must first be satisfied that the proposed evidence is capable of being reasonably believed and supporting the inferences that the Crown asks the trier of fact to make: Handy at para. 134.

B. Measuring Probative Value

[94] The next task for the trial judge is to evaluate the probative value of the evidence within the context of the Crown’s formulation of the issue in question.

[95] In Handy, Binnie J. provided, at para. 82, a useful list of considerations that had developed over the years for measuring probative force:

• Proximity in time between the similar acts and the charged conduct;

• Similarity in detail between the similar acts and the charged conduct;

• Number of occurrences of the similar acts;

• The circumstances surrounding the similar acts;

• Any distinctive features that unify the incidents;

• Any intervening events; and

• Any other factor that would tend to support or rebut the underlying unity of the acts.

[96] As the last point makes clear, this list is not exhaustive. Similarly, in any given case, not all of these factors will necessarily be relevant. Rather, they serve as useful guideposts to assist the trial judge determine the strength or weakness of the probative force of the evidence.

[97] Where the matter at issue is proof of a motive, a somewhat different analysis is required. Evidence of an accused’s motive is relevant, as it can impact questions of identity and intent: Lewis v. The Queen, 1979 CanLII 19 (SCC), [1979] 2 S.C.R. 821, at p. 833; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 60. Consequently, evidence establishing motive is normally admissible. However, where, as in the present case, the evidence of motive arises from discreditable conduct, the evidence’s admissibility must still be gauged. In these circumstances, motive evidence is not automatically admissible. The trial judge must still balance probative value versus prejudicial effect: R. v. Chapman (2006), 204 C.C.C. (3d) 449 (Ont. C.A.), at para. 27.

[98] This said, motive evidence does not fit neatly within the normal similar fact evidence “test”. This, in large measure, is due to the fact that its probative value does not arise from any similarity. Rather, as set out at para. 80 of Handy:

[W]here the issue is animus of the accused towards the deceased, a prior incident of the accused stabbing the victim may be admissible even the victim was ultimately shot … The acts could be said to be dissimilar but the inference on the “issue in question” would nonetheless be compelling. [Emphasis in original]

[99] It is not sufficient for the Crown to identify some past conflict between an accused and a victim, and then speculate that it establishes animus and therefore motive. The Supreme Court in R. v. Barbour, 1938 CanLII 29 (SCC), [1938] S.C.R. 465, at p. 469, warned that “it is rather important that the court should not slip into a habit of admitting evidence which, reasonably viewed, cannot tend to prove motive or explain the acts charged merely because it discloses some incident in the history of the relations of the parties.”

[100] Thus, evidence of past misconduct that is woven into a speculative theory of motive does nothing more than bring in the bad character of the accused, and ought to be excluded on the basis that its prejudicial value exceeds any small probative value it might have: see, e.g. R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at pp. 938-941.

[101] On the other hand, evidence that provides the trier of fact with real insight into the background and relationship between the accused and the victim, and which genuinely helps to establish a bona fide theory of motive is highly probative, even in the absence of similarity with the charged offence: see, e.g. R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 (Ont. C.A.), at paras. 70-109.

C. Measuring Prejudicial Effect

[102] Even where proposed similar facts are probative, the trial judge must still guard against admitting evidence that is, on balance, overly prejudicial. It is the task of the trial judge to determine the extent to which moral and reasoning prejudice are engaged on the facts of the case.

D. Balancing the Factors

[103] After measuring and weighing the probative value and the prejudicial effect of the proposed evidence, the trial judge decides whether to admit the evidence. Although a trial judge has no discretion to admit proposed similar fact evidence that is more prejudicial than probative, a trial judge must still be afforded appropriate deference given the inherent difficulty in balancing probative and prejudicial effects: Handy, at para. 153.

[104] If similar fact evidence is found to be admissible, the trial judge must give the jury a limiting instruction to minimize the risk that they would engage in the prohibited reasoning the exclusionary rule seeks to avoid. The instruction must also provide guidance to the jury as to how they can use the evidence properly.

III. APPLICATION TO THE FACTS

A. The Ruling of the Trial Judge

[105] The manner in which the admissibility of the two instances of similar fact was determined by the trial judge was somewhat complex. The Crown originally brought its application to admit the similar facts in a pre-trial motion. Neither Shawn Soney nor Clarissa Shipman had testified at the preliminary inquiry. While Ms. Shipman was called on a pre-trial voir dire, Mr. Soney’s evidence was considered on the basis of a police statement upon which the defence was not given an opportunity to cross-examine. The trial judge chose to defer the decision on admissibility until later during the trial when the matters at issue were better defined.

[106] The Crown’s theory with respect to the murder charge was that the victim was not a willing sexual partner of the accused. When he attempted to have sex, she was resistant and he killed her.

[107] On the similar fact evidence application, the Crown argued that, although the Black Shack Road incident was dissimilar to the alleged offence, it was admissible as it showed similar situation-specific behavior. However, this position was premised not only on the evidence of Shawn Soney, but also on a police statement given by Michelle Aquash. In that statement, Ms. Aquash said that before Mr. Soney and the appellant left the vehicle (and unbeknownst to her, discussed attacking her), the appellant had made sexual advances towards her, which she rebuffed.

[108] Whether this evidence would have been sufficiently similar to the alleged offence became irrelevant when the Crown opted to introduce only the evidence of Mr. Soney, who did not testify to any sexual context.

[109] In fairness to the trial judge, however, his assessment at the admissibility stage had to be premised on the application as presented by the Crown.

[110] With respect to the White Truck incident, the Crown argued that the evidence of Clarissa Shipman was adduced to show a specific animus towards the victim on the part of the accused, as well as to illustrate another instance of the accused’s cruising around Walpole Island while intoxicated, and manifesting violent intent towards a female passenger.

[111] The trial judge ruled that the evidence respecting both incidents was admissible. Given that this case ultimately came down to the credibility of Nathaniel Shipman’s version of events, the trial judge identified this as the fact in issue for the purposes of the similar fact evidence. By showing similar conduct by the accused in similar situations, and by introducing motive evidence, the Crown was asking the jury to infer that it was more likely that the accused killed the victim, rather than Nathaniel Shipman. The trial judge concluded that the similar fact evidence had a high probative value as it showed that the accused regularly drove around Walpole Island while drunk, and when he did so, he acted violently towards female passengers. In particular, he acted violently towards the victim.

[112] For the reasons that follow, I have concluded that the trial judge erred in admitting this evidence. It had limited probative value and was significantly prejudicial.

B. Probative Value of the Similar Acts

i) The Black Shack Road Incident

[113] The issue in question was identity, which turned on credibility. The Crown’s position was premised on establishing a pattern of situation-specific behaviour on the part of the appellant to support its case on identity. In order to have any probative value, the evidence needed to exhibit a significant degree of similarity. The inference that the Crown asked the jury to draw from the Black Shack Road incident was essentially one of pure propensity: the accused acted in a violent manner towards women and, therefore, he was more likely than Nathaniel Shipman to have killed the victim. The only way in which this evidence had any true probative value was if the circumstances surrounding the two incidents were sufficiently similar. Without this similarity, all the jury would be left with was evidence that the accused was a bad, violent person, and therefore more likely to have committed the offence.

[114] The only similarities between Nathaniel Shipman’s version of the events of the night of the alleged crime and Shawn Soney’s description of the Black Shack Road incident was that both involved cruising around Walpole Island with one man and one woman, and that the accused exhibited animus towards the female passenger while intoxicated.

[115] The Crown’s theory, however, was that the victim’s death occurred in the course of a sexual assault. There was no sexual component to either Shawn Soney or the appellant’s version of the Black Shack Road Incident. The Crown elected not to call Michelle Aquash, and therefore did not ultimately present the Black Shack Road incident as one of rebuffed sexual advances.

[116] As well, although it was reasonably proximate in time to the alleged offence, the Black Shack Road incident was an isolated occurrence that did not establish a pattern of behaviour, much less a mode of operating. There were no distinctive features unifying the incidents. The Crown failed to show that the appellant’s conduct on this occasion was distinctive. To the contrary, there was evidence that drinking and cruising was a behaviour that was practised in the area. The incident thus simply did not exhibit sufficient similarities to render it particularly probative with respect to identity.

[117] Accepting, as the Crown suggests, that the universe of potential perpetrators was limited to the appellant and Nathaniel Shipman, to overcome the significant prejudicial effect, the similar fact evidence would only be admissible if it demonstrated a specific propensity to commit serious violence to women in similar circumstances. Without the sexual component, the evidence lacked the degree of distinctiveness necessary to demonstrate the specific propensity even where the universe of potential perpetrators was as limited as alleged in this case.

[118] At best this evidence might establish that the accused was violent when intoxicated. In light of the prejudicial impact of this evidence, this is not so unique as to make the evidence sufficiently probative as to avoid the general exclusionary rule.

ii) The White Truck Incident

[119] The value of the White Truck incident was problematic for entirely different reasons. As motive evidence, it did not rely on any significant measure of similarity. What was important was the value the incident could provide with respect to establishing a motive for the killing.

[120] Arguably, the incident showed that the accused disliked the victim, even to the point of violence. However, it is not sufficient to show some dispute between victim and accused and label it motive. The past incident must have real significance and a logical connection to the offence charged to be probative: Cloutier v. The Queen, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, at p. 736; Barbour, at p. 470.

[121] In my view, the animating context of the appellant’s actions in the White Truck incident was entirely unconnected to the animus that was supposed to have motivated the alleged offence. By all accounts, what animated the actions of the appellant during the White Truck incident was the unwelcome behaviour of a disruptive and argumentative teenager. The incident seems to be an isolated one in the relationship (whatever this relationship was) between the appellant and the victim. There was no evidence that the appellant continued to harbour significant resentment against the victim from this incident that could suggest he decided to kill her on August 7-8, 2005. Rather, the Crown’s theory was that the killing occurred as part of a sexual assault, an incident far removed from a past incidence of violence occasioned by annoyance.

[122] Apart from acting as motive evidence, the incident only served to show that on one occasion in the past the appellant acted violently towards the victim. In that respect, the evidence was admittedly more probative on the issues of identity and credibility than the Black Shack Road incident: here, the accused actually did act violently, and his target was the victim herself. However, this incident and the offence had no distinctive features unifying them, and were different in many key respects, limiting its probative value on this issue. As noted earlier, the White Truck incident was triggered by a misbehaving teenager, while the offence was, on the Crown theory, sexually motivated. The White Truck incident occurred in daylight with a full car, with several people watching, while the charged offence happened at night and in isolation, where even Nathaniel Shipman could not see the events closely. In my view, the context and circumstances were so different such that the way the appellant acted towards the victim on the prior occasion would tell the jury very little about the likelihood of his acting in a similar manner on the occasion leading to the victim’s death. As noted in Handy at para. 130, “common sense” cannot safely be relied upon to allow the drawing of the inference sought by the Crown.

[123] By failing to adequately consider whether the White Truck incident could genuinely be said to show motive, and by failing to properly consider the differences in the evidence, the trial judge, in my view, overestimated the probative value of the similar facts.

C. Prejudicial Effect of the Similar Facts

[124] In considering the prejudicial effect of the similar facts, the trial judge said:

The inference which is sought to be drawn by the proposed similar fact evidence must relate to an issue at trial which thus makes this kind of evidence material. Any prejudice in this context can only mean that there may be an increased chance of conviction. While it is one thing for this evidence to operate unfortunately for the accused, it is quite another to use any evidence unfairly or improperly. [Emphasis added.]

[125] Read literally, this passage might be interpreted to mean that, because the similar fact evidence was material – and therefore relevant – the only “prejudice” caused by it would be that it tended to implicate the accused. Of course, this position would be wrong; probative similar fact evidence may still be highly prejudicial.

[126] However, I do not read this passage as suggesting that the trial judge viewed the issue of prejudice this way. Rather, when read in context, it is apparent that the trial judge simply meant that it is not prejudicial, in the sense of moral or reasoning prejudice, for the similar fact evidence to implicate the accused.

[127] The problem, however, is that the trial judge’s reasons contain no analysis of the potential for the moral or reasoning prejudice identified in Handy.

[128] In my view, there was a real risk of both forms of prejudice in this case.

[129] Although the incidents that formed the basis of the similar fact application were far less serious than the offence alleged, a risk of moral prejudice nonetheless arose as both incidents evidenced bad character and reprehensible conduct. The Black Shack Road incident showed the appellant to be a person who seeks to inflict serious injury without any provocation or cause. The White Truck incident was worse: it demonstrated an actual attack that had gone entirely unpunished. Presented with this evidence, a fair-minded juror might well conclude that the appellant was simply a bad person.

[130] Further, this was not a case where the similar facts themselves were clearly demonstrated. The witnesses who provided the evidence exhibited serious frailties. Shawn Soney admitted that he had little recollection of the Black Shack Road incident independent of his police statement. Clarissa Shipman’s evidence was often internally inconsistent.

[131] Against these shaky accounts, the appellant provided an entirely different account of both incidents. Like the two similar fact witnesses, the appellant’s evidence was seriously put into question. The jury was thus left not only with a difficult conflict between the evidence of the appellant and Nathaniel Shipman – which ought to have been the focus of the trial – but also between the appellant and Shawn Soney and Clarissa Shipman respectively.

[132] Both similar fact incidents gave rise to a strong risk of an unfocused and distracted approach to the case. This, combined with the real risk of moral prejudice and the marginal probative value of the evidence, ought to have resulted in a ruling that the evidence was inadmissible.

D. The Charge To The Jury Compounded The Prejudice Caused By The Admission Of The Similar Fact Evidence

[133] The manner in which the trial judge instructed the jury with respect to the similar fact evidence compounded the problematic role that this evidence played in the trial.

[134] Given Nathaniel Shipman’s admission of complicity in the killing of the victim, and his admitted inconsistent statements to both law enforcement and the courts, the trial judge quite properly concluded that the jury required a Vetrovec caution: see Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811. He told the jury that, while they were entitled to accept Mr. Shipman’s evidence, common sense indicates that they ought to search out confirmatory evidence.

[135] The trial judge then reviewed the evidence which, in his view, might be confirmatory. Virtually all of this evidence was the similar fact evidence of Shawn Soney and Clarissa Shipman. He pointed to what he viewed to be the similarities between the similar facts, and Nathaniel Shipman’s account of the night of August 7th. However, the trial judge made no mention of the many dissimilarities between the incidents.

[136] In fairness to the trial judge, later in his charge, when instructing the jury on the similar fact evidence itself, he referred to both similarities and dissimilarities. This certainly would have gone some distance in assisting the jury. However, the manner in which the similar facts were linked to the Vetrovec caution remained problematic.

[137] First, I question the extent to which the similar facts were capable of supporting the credibility of Nathaniel Shipman. As I have already stated in these reasons, the trial judge overestimated the similarities between the incidents and the offence charged. There was no real similarity between either similar fact incident and Nathaniel Shipman’s story; no evidence of distinctive conduct described by each witness independently from one another.

[138] Perhaps more importantly, the trial judge failed to bring home to the jury the very serious frailties in the similar fact evidence. He told the jury that, if they were not convinced that the similar facts had occurred, they could not rely on them. However, he failed to tell the jury why there was reason to be cautious about the evidence of Mr. Soney and Ms. Shipman, as he had with respect to Nathaniel Shipman.

[139] In the end, the jury were left with a significant body of evidence of disreputable conduct, which had marginal probative value and questionable reliability, and were told that they could use it to confirm the central but problematic evidence of the Crown’s main witness. In these circumstances, the risk of prejudice to the appellant was great. In that regard the Crown quite properly conceded that if the similar fact evidence ought not to have been admitted, the proviso (s. 686(1)(b)(iii) of the Criminal Code) could not be relied on to dismiss the appeal.

CONCLUSION

[140] The rule against bad character evidence is a long standing one, justified by well accepted policy considerations. It is one of the central exclusionary rules in the law of evidence designed to ensure that an accused’s right to a fair trial is maintained. Similar fact is an exception to this exclusionary rule and the case for making such an exception was simply not made out on this record.

[141] I would allow the appeal, set aside the conviction and order a new trial on the charge of second degree murder.

“Paul Rouleau J.A.”

“I agree M. Rosenberg J.A.”

“I agree Gloria Epstein J.A.”

RELEASED: October 4, 2010

[^1]: In light of this court’s recent decision in R. v. Edgar, 2010 ONCA 529, these exculpatory statements would be admissible in the appellant’s case in-chief, notwithstanding the rule against prior consistent statements.