Court of Appeal for Ontario

Date: August 9, 2019 Docket: C61139

Judges: Feldman, Paciocco and Zarnett JJ.A.

Between

Her Majesty the Queen Respondent

and

George Tsigirlash Appellant

Counsel

For the Appellant: J. Randall Barrs and Richard Litkowski

For the Respondent: Jill Cameron

Heard: February 11, 2019

On Appeal

On appeal from the conviction entered by Justice James A. Ramsay of the Superior Court of Justice on June 19, 2015, with reasons reported at 2015 ONSC 4011.

Zarnett J.A.:

A. Introduction

[1] The appellant was the principal of Auto Enterprises Inc., a salvage yard, repair shop and seller of car parts operating in the Niagara Region.

[2] After a June 2011 police investigation, the appellant was charged with 47 offences. Forty-four of the charges alleged possession of stolen property, and three alleged fraud over $5000. Fourteen of the stolen property charges involved possession of stolen vehicles; the balance alleged possession of stolen car parts. The fraud charges alleged the appellant had defrauded three different individuals by selling them automobiles that contained stolen parts.

[3] The offences were alleged to have occurred at three locations: the Auto Enterprises premises on Lincoln Avenue and two other Niagara Region properties where the appellant was alleged to have stored inventory (the "Kucan" and the "Seneca Steel" properties).

[4] The charges proceeded to trial on a multi-count (47-count) indictment before a judge alone.

[5] Neither before trial, during trial, nor in closing argument was there any request by the Crown for the admission or use of evidence on any individual count as similar fact evidence on the other counts.

[6] The trial judge gave oral reasons at the conclusion of trial on June 19, 2015, indicating that more extensive written reasons would follow. In his oral reasons he acquitted the appellant on two stolen property charges and one fraud charge, stayed one charge [1] and convicted the appellant on the balance of the counts other than one that had been withdrawn at the opening of trial.

[7] The trial judge delivered written reasons on June 22, 2015, more fully explaining the result he had reached. In those written reasons, the trial judge stated that he would use "evidence across counts as similar fact evidence". His written reasons indicate that he did so.

[8] The appellant appeals against conviction [2], raising the following four grounds:

a) The trial judge erred in his use of evidence across counts as similar fact evidence.

b) The trial judge misapprehended evidence and failed to give weight to exculpatory evidence.

c) The trial judge erred in his approach to circumstantial evidence and treated the case as a credibility contest.

d) The trial judge did not properly instruct himself on exculpatory evidence independent from the appellant's testimony.

[9] In my view, the trial judge erred in his approach to similar fact evidence. I would therefore allow the appeal. Because of that conclusion, it is not necessary to deal with the other grounds the appellant raises.

B. The Trial and the Trial Judge's Reasons

[10] A major issue at trial was whether the appellant knew that the vehicles and vehicle parts identified in each of the stolen property counts had been stolen, and whether he knew that the vehicles that were the subject of the fraud charges contained stolen parts and therefore were not what the purchasers of the vehicles thought they were getting. The appellant's position was that he did not know that any of the items were stolen. The defence attributed the presence of any stolen property to a dishonest former business associate. Further, the appellant denied a connection to the Kucan and Seneca Steel properties. As the trial judge put it, "[t]he position of the defence is that [the appellant] did not know that any of the items in question had been stolen and that he had no measure of control over the items at the Kucan property and the Seneca Steel property."

[11] The Crown did not refer to similar fact evidence in its opening statement. The evidence led at trial was not accompanied by, and we were not pointed in argument to, any request on the record for evidence of one count to be used as similar fact evidence on the others. Nor did the Crown so request in its closing argument; instead, the Crown at trial essentially argued the case by going through the evidence count by count.

[12] Nonetheless, the trial judge stated early in his written reasons that he would apply evidence across counts as similar fact evidence:

I propose to use evidence across counts as similar fact evidence on the issue of whether the accused knew that an item in his possession was stolen. It is easier to possess a small amount of stolen property unknowingly than a large amount. Evidence of possession of large amounts of stolen property could make it more probable that the accused knew that the inventory he had consisted of stolen property. Using the evidence across counts for that purpose would provide evidence that is sufficiently probative to outweigh its prejudicial effect. It is relevant and probative without resort to propensity reasoning. The acts that are the subject matter of the evidence are sufficiently similar to be probative of knowledge. In possession of stolen property cases, other acts of possession of stolen property are a classic use of similar fact evidence on the issue of knowledge.

[13] After making that statement, the trial judge proceeded to summarize the evidence on the counts and to describe evidence that linked the Auto Enterprises property to the Kucan and Seneca Steel properties. As part of his summary of the evidence, he referred to the vehicles that were the subject of Counts 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 as having missing Vehicle Identification Numbers (VINs) or at least one VIN belonging to a different vehicle.

[14] In his summary of the evidence on the counts, the trial judge dealt with some counts individually and grouped other counts together.

[15] The trial judge then provided an analysis of the evidence and an explanation of his conclusions. He began by stating that the evidence of the defence witnesses did not raise a reasonable doubt on any count. He disbelieved the evidence of the appellant and his witnesses that the appellant had withdrawn from the day-to-day operations of Auto Enterprises in 2010 (before the time relevant to most of the counts), had nothing relevant to do with the Kucan property or the Seneca Steel property, and did not know of any stolen property at any location.

[16] The trial judge then identified the question as whether the evidence that he did accept proved the guilt of the appellant beyond a reasonable doubt.

[17] The trial judge proceeded to make a number of findings specific to some counts, and a number findings drawn from a use of the evidence across counts. These included findings that the appellant was "running a stolen car and parts operation", that "[p]rocuring stolen vehicles and procuring wrecks to provide false VINs to disguise the stolen vehicles was a key part of the business" and that "the absolute number [of stolen parts] present", among other things, made "the case that [the appellant] was deliberately dealing in stolen goods." I address those findings and the way in which they were used in the Analysis portion of these reasons.

[18] The trial judge convicted the appellant on 42 counts. He acquitted the appellant on three counts (Counts 3, 4 and 12). On one count, the evidence did not show that the stolen vehicle had been on any premises linked to the accused; it was not found on the Auto Enterprises, Kucan, or Seneca Steel property by the police. On another, the evidence did not show that the vehicle in question was in fact stolen or ever on the Auto Enterprises premises. On the third, the trial judge was not satisfied that the purchaser of a vehicle with stolen parts been deceived by the appellant; the purchaser may have known that the car contained stolen parts. The trial judge stayed one count (Count 17).

C. The Positions of the Parties

[19] The appellant, in oral argument but not in his factum, pointed out that the Crown had not applied for the use of evidence across counts as similar fact evidence — the first time the concept appeared was in the trial judge's reasons. The appellant characterizes this not as an independent ground of appeal, but as providing important context for what he says was the trial judge's erroneous approach to the similar fact evidence issue. The appellant argues that the trial judge's single-paragraph consideration of why he could use evidence across counts as similar fact evidence, and his use of it, contained the following flaws:

(a) The idea that the issue of knowledge was one to which similar fact evidence should apply was the result of circular reasoning. It assumes the very conclusion that the evidence was ostensibly being used for, namely that the appellant "possessed" the items (which includes knowing that they were stolen). Without that assumption, the number of stolen items in question could not assist on the knowledge issue.

(b) The trial judge elided the issue that others were responsible for the presence of the stolen property, which was the defence position at trial. He used evidence across counts without adverting to its relationship to this issue.

(c) There was no meaningful analysis of the probative value and prejudicial effect of the similar fact evidence, which is necessary to decide whether similar fact evidence can be used across counts.

[20] The Crown conceded on appeal that there had been no request by trial counsel for the use of evidence across counts as similar fact evidence. But Crown counsel argues that this court's decision in R. v. T.B.L. (2003), 173 O.A.C. 159 (C.A.), stands for the proposition that, where the defence should have known of the possibility of the use of evidence as similar fact evidence, there is no prejudice when such use occurs. And she argues that the trial judge did not err in treating evidence across counts as admissible similar fact evidence because the possession of each stolen vehicle or part was highly probative to whether the appellant was running an illegal "chop shop" business, therefore rebutting any innocent explanation for the presence of stolen vehicles or parts on the properties. The Crown submits that the trial judge linked the appellant to the stolen vehicles and parts in each count, and that in a multi-count, judge-alone trial there is a minimal risk of prejudice arising from the use of evidence across counts.

[21] The Crown also argues that the trial judge's principal conclusions on most counts were reached not on the basis of evidence applied across counts, but based on evidence relating to those individual counts.

D. Analysis

(1) The Relevant Principles Relating to the Use of Evidence Across Counts

[22] In order to explain why, in my view, the trial judge's use of evidence across counts as similar fact evidence constituted a reversible error, I begin by outlining some of the applicable principles.

(a) The General Rule: Presumptive Inadmissibility

[23] The general rule is that evidence of the accused's discreditable conduct is inadmissible, unless that conduct is the subject-matter of the charge in question: Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018), at §11.1. This general rule operates both as a pure rule of admissibility and as a rule of restricted admissibility. When the proposed evidence relates to extrinsic misconduct — discreditable conduct for which the accused is not charged — the rule determines whether that evidence will be heard. When the request is to use evidence already admissible on one count to prove a separate count, the rule operates as a rule of restricted admissibility: the already-admitted evidence can be used only on the count to which it relates. In other words, evidence against an accused on one count of an indictment may not be used to prove the guilt of the accused on another count, unless the counts arise out of the same events: David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 88. [3]

[24] The general inadmissibility rule will not apply where the evidence of discreditable conduct meets the test for similar fact evidence. But, importantly, there are a number of steps that must occur, and a number of factors that must be considered, before the similar fact evidence test is met and evidence on one count can be applied to others or evidence of extrinsic misconduct can be admitted at all.

[25] These steps and factors are critical because similar fact evidence is presumptively inadmissible, whether the evidence of similar acts is evidence of other counts in the indictment or is evidence of extrinsic misconduct: R. v. MacCormack, 2009 ONCA 72, at para. 48.

(b) A Crown Request and an Admissibility Inquiry are Required

[26] There are certain consequences to this presumptive inadmissibility. The first is that when the Crown wishes that presumptive inadmissibility to be displaced, it bears the onus of satisfying the trial judge that, on a balance of probabilities, the probative value of the evidence on a particular issue outweighs its prejudicial effect in the context of the case, and thus justifies its reception: MacCormack, at para. 48; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55. The second consequence is that, to determine whether the Crown has met its onus to admit similar fact evidence, the court is to conduct an inquiry, often termed an admissibility inquiry [4], focusing on the acts themselves: MacCormack, at paras. 52, 57. [5]

[27] It follows from the existence of an onus on the Crown to displace presumptive inadmissibility, and from the very notion of an admissibility inquiry, that a request by the Crown for similar fact treatment is a precondition to that treatment being given to evidence. The presumption and onus would lose their meaning, and an admissibility inquiry informed by the submissions of Crown and defence would not be possible, if a Crown request in some form were not made. The Criminal Proceedings Rules for the Superior Court of Justice (Ontario), S.I./2012-7, for instance, require that an application be made where a party seeks to have "evidence of similar acts, whether included as other counts or not", admitted: rr. 30.01-30.05. And where this court has excused the absence of a formal application to admit similar fact evidence, it has done so on the basis that there was an informal or implicit Crown request to admit the evidence, which was sufficient in the circumstances: see T.B.L. and R. v. Graham, 2015 ONCA 113, both discussed below. When the Crown attempts to lead extrinsic evidence of similar acts or argues for certain uses of evidence across counts, the clear inference from that conduct may be that a request is being made for similar fact evidence treatment. When this inference is clear, the defence has a meaningful opportunity to respond, and the trial judge is in a position to properly assess the Crown's request, the lack of a formal application may be excused because no prejudice will have occurred. But a request must have been made in some form so as to give the defence this opportunity and to lay the groundwork for a proper admissibility inquiry.

(c) An Identification of the Similar Acts and the Purpose for Which Evidence is to be Used is Required

[28] Certain aspects of the admissibility inquiry, elaborated below, are also germane to a consideration of the trial judge's approach here. They pertain in particular to the necessity of precisely identifying, at the outset of any consideration of similar fact evidence admissibility, what the similar acts are, the issue on which evidence of the similar acts is to be used, and the inferences the evidence is tendered to support.

[29] The probative value part of the inquiry has two aspects. The first aspect addresses the logical "nexus established between the evidence of similar acts and the offence that the evidence is offered to prove": MacCormack, at para. 49. Where the logical nexus depends on the similarity of the similar acts to the act charged, the probative value of the evidence will increase with the degree of similarity, because the probability that the similarity is a result of coincidence will decrease. The court must be satisfied that the "objective improbability of coincidence" has been established: R. v. Arp, [1998] 3 S.C.R. 339, at para. 48. This analysis cannot be done in the abstract, but only on the basis of specifically-identified similar acts.

[30] Buttressing the requirement to specifically identify the similar acts is that the similarity analysis is conducted taking into account the specifics of the case and of the offence to which the evidence is sought to be applied. Factors such as proximity in time and place, similarity in detail and circumstances, number of occurrences, and distinctive features unifying the occurrences will all be considered in determining whether the evidence has the requisite degree of similarity to the offence charged under the circumstances: MacCormack, at para. 53; Handy, at para. 82.

[31] The degree of similarity required for admission in a particular case will be determined by the issues in the case, the purpose for which the similar fact evidence is being tendered, and the other evidence tendered in the case: Handy, at paras. 76-80. For example, if similar fact evidence is tendered to help prove the identity of the person responsible for committing a crime, the court will demand a high degree of similarity between the acts and the offence charged: MacCormack, at para. 50. If similar fact evidence is tendered to help prove the accused's intent, on the other hand, acts that may be less similar could still support a sufficiently compelling inference on that issue: Handy, at para. 80.

[32] As the purpose the proposed similar fact evidence is intended to serve plays an important role in the court's admissibility analysis, it must be clearly defined as a prerequisite to that analysis: Handy, at para. 73. As stated by Binnie J. in Handy, at para. 82, judges must "consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves" (emphasis added). In assessing the probative value of the proposed similar fact evidence, it is necessary to determine "the precise 'issue in question'" for which the Crown has sought to tender the evidence: at para. 99.

[33] The balance of the considerations in the admissibility inquiry is also premised on the similar acts and the purpose for the use of evidence of those acts having been precisely identified.

[34] The second aspect of the court's probative value analysis is the linkage inquiry. There must be a demonstrated link between the accused and the alleged similar acts as a precondition to admissibility: MacCormack, at para. 59. There must be "some evidence" that links the accused to the acts: Arp, at paras. 54, 56.

[35] In the next part of the admissibility inquiry, the court assesses the proposed evidence's prejudicial effect. It must do so in light of the proposed similar acts and the purpose of introducing evidence of them. The defined acts and purpose inform the court's consideration of the two types of prejudice that evidence of similar acts tends to carry: "moral prejudice" and "reasoning prejudice". Moral prejudice refers to the risk that the accused will be stigmatized as a bad person and convicted on that basis. Reasoning prejudice includes the risk that the trier of fact will be distracted from their proper focus on the offence(s) charged, including because they may be confused by evidence of multiple incidents or may put more weight than is logically justified on the similar fact evidence, and the risk that unwarranted trial time will be consumed: MacCormack, at para. 55; R. v. T.B., 2009 ONCA 177, 95 O.R. (3d) 21, at para. 26. The specific acts, the purpose of introducing evidence of them and the inferences sought to be drawn from that evidence are fundamental to this assessment.

[36] For the same reasons, specifying the acts and their purpose is also fundamental to the final part of the inquiry, in which the court weighs the evidence's probative value against its prejudicial effect to determine whether the former outweighs the latter on a balance of probabilities: Handy, at para. 55.

[37] In summary, the admissibility inquiry itself requires the proposed similar acts to be clearly identified. It also requires the purpose of using similar acts, that is, the issue to which evidence of the acts is to be applied and the inferences sought to be drawn from that evidence, to be clearly identified. The analysis of probative value (including similarity and linkage) and prejudice takes place through that lens.

(d) The Test Applies in Judge-Alone, Multi-Count Cases

[38] These principles are not affected by the fact that a case is being tried without a jury, nor by the fact that in a multi-count situation, the issue is not whether evidence will be heard at all, but to what use it will be put. In MacCormack, Watt J.A. noted that the test for the admissibility of similar fact evidence offered to prove identity is the same whether the alleged similar acts are extrinsic to counts in the indictment or contained in other counts of the same indictment: at para. 56. To be sure, some of the factors in the analysis relevant to an assessment of prejudice may have an attenuated influence in cases where the similar acts are restricted to other counts in a multi-count indictment, especially where the case is tried by a judge sitting alone. In such cases, the risks of moral prejudice and reasoning prejudice are significantly diminished: MacCormack, at paras. 56, 68-69; T.B., at paras. 26-28, 31. Excluding the similar fact evidence will not prevent the judge from hearing it, and the concern that a judge will convict on the basis of the accused's bad character is much less significant than the concern that a jury will do so: T.B., at para. 33. Further, the only time added to the trial is that "needed for the argument on admissibility at the end": MacCormack, at para. 69.

[39] Nonetheless, even in a judge-alone, multi-count indictment case, the test applies and must be met. Even though some of the factors in the test may be attenuated, they are still to be considered.

[40] In my view, these comments extend to cases where similar fact evidence is offered on issues other than identity. Indeed, this court applied parts of the Handy analysis in T.B., a case in which the alleged similar acts were contained in other counts of the same indictment and the evidence went to supporting the complainants' allegations (not to identity).

[41] I now turn to the application of those principles.

(2) The Trial Judge Erred by Using Similar Fact Evidence Without a Crown Request for Such Use

[42] In my view, it was an error for the trial judge in this case to use evidence across counts as similar fact evidence without a request of any kind for that use having been made by the Crown. As the preceding discussion shows, such evidence was presumptively inadmissible and there was an onus on the prosecutor to satisfy the trial judge that it could be used across counts. The Crown made no request for similar fact treatment in any form and thus did not attempt to meet the onus it would have had; the defence had no opportunity to respond.

[43] The fact that the similar fact evidence related to other counts in the indictment and the trial was by judge alone — matters that attenuated any prejudice arising from the admission of the similar fact evidence — is not determinative when the Crown has not asked for similar fact treatment. To hold otherwise would be to do away with the presumptive inadmissibility of such evidence and the onus on the prosecutor to overcome it, and to replace it with a rule that such evidence is admissible in a judge-alone, multi-count case. The law does not permit that conclusion: R. v. Handy, at para. 55, MacCormack, at para. 48, R. v. Arp, at para. 40.

[44] I do not agree with the proposition of the Crown on appeal that the use of similar fact evidence without any request by the Crown is authorized by this Court's decision in T.B.L. In T.B.L., a multi-count indictment case, the Crown did make a request: it asked for a jury instruction about the use the jury could make of evidence on other counts as similar facts at the pre-charge conference. The defence contention in that case was that the request should have been made before the evidence was led. It was in that context that this court held that the defence had not been prejudiced by the timing of the Crown's request. The defence should have expected such a request to have been made, and since the evidence was of other counts, a separate admissibility hearing when the evidence was led had not been required. All that was required was a determination by the trial judge at the time of the pre-charge conference that it would be appropriate for the jury to consider certain evidence from certain counts on others: at paras. 7-8.

[45] T.B.L. does not assist the Crown here. This case does not involve an issue of the timing of a request by the Crown that the defence should have anticipated, or of any prejudice arising from that timing. Here, unlike in T.B.L., no request was ever made; the defence had no opportunity to respond to any proposed use of evidence across counts as similar fact evidence, as the defence in T.B.L. did when it was raised at the pre-charge conference.

[46] Nor is this case like Graham. In Graham, this court upheld a conviction where the trial judge had used extrinsic evidence and count-to-count evidence of specific acts without the Crown having sought a formal ruling on the use of this evidence. However, the defence at trial did not object to the introduction of the extrinsic evidence, and defence counsel had been "alerted and given the opportunity to respond" to the use of evidence across counts because the Crown "specifically relied on propensity reasoning" in closing submissions: at para. 32. Despite that opportunity the defence did not object to the Crown's reliance on evidence across counts. Although the court stated that it would have been better for the trial judge to have held a voir dire and heard submissions concerning the admissibility and use of the evidence, there had been no procedural unfairness and the similar fact evidence was admissible and properly used. The failure of the defence to object when it was alerted and given the opportunity to respond was critical to the court's decision.

[47] In this case, we have not been pointed to anything that would have alerted the defence to the cross-count use the trial judge proposed to make of the evidence, nor of anything that would have given the defence an opportunity to respond. There cannot have been a meaningful failure to object in such circumstances. And, as I explain below, the brief consideration the trial judge gave to the issue was flawed.

(3) The Trial Judge Erred in the Way He Considered and Used Evidence Across Counts as Similar Fact Evidence

[48] I agree with the appellant that the absence of a Crown request provides important context for a consideration of the trial judge's decision to admit similar fact evidence. Normally, a decision to admit such evidence is entitled to substantial deference: Handy, at para. 153. However, the absence of a Crown request, and an admissibility analysis made without submissions from the parties are, in my view, circumstances that remove the basis for such deference.

[49] The trial judge's consideration of probative value (namely, similarity and linkage) and of prejudice did not have the benefit of a clear articulation by the Crown of the exact acts claimed to be similar, the issue on which evidence of those similar acts was to be used, and the inferences the evidence was said to support. It also did not have the benefit of any submissions by the defence. As set out above, both an identification of the acts said to be similar, and a clear articulation of the purpose for which the similar fact evidence is to be used are central to the admissibility inquiry. They determine and delimit the acceptable use to which admissible similar fact evidence may be put.

[50] The trial judge said he was using "evidence across counts". The statement is not itself clear as to whether he identified all of the evidence on each count as probative so as to be useable on every other count, or only certain evidence (for example, the existence of a stolen vehicle and/or part in each count). The trial judge then stated that he would use similar fact evidence on the issue of knowledge, to support the inference that it is less probable that one would not know about a large amount of stolen cars and parts on their property than a small amount. This suggests that he was referring to the presence of stolen vehicles and parts on the three properties as the facts that were similar between the counts, in support of a specific inference. But whatever the trial judge may have meant to identify as the similar acts, it was neither requested by the Crown nor an issue on which the defence had an opportunity to make submissions.

[51] Moreover, despite describing the issue and inference for which he intended to use the cross-count evidence, the trial judge did not limit his use to that issue. In my view, the Crown's own description on appeal of the use to which the trial judge put the evidence across counts better captures the way it was used. Namely, it was used to support an inference that the appellant was engaged in a business of dealing in stolen vehicles and parts, which had a certain method of operating, including procuring wrecks, removing VINs from them and attaching them to stolen vehicles.

[52] Two problems are revealed by the use of the evidence across counts for that purpose. First, the similar acts seemingly identified by the trial judge in his admissibility analysis were expanded beyond the presence of stolen vehicles and parts referred to in the counts to include evidence about the way in which the vehicles or parts in various counts appeared, what had been done to them, by whom and for what purpose. Second, the trial judge went beyond the issue and inference he stated in his admissibility analysis to draw a different inference. The trial judge did not indicate how he considered the probative value and prejudice aspects of the admissibility inquiry for that expanded set of acts or for that different purpose and different inference, let alone how he satisfied himself the test was met. I therefore agree with the appellant that the trial judge's consideration of the elements of the admissibility test was flawed.

[53] As my discussion below will illustrate, these errors, namely the use of evidence across counts as similar fact evidence without any request, and the use of evidence for a purpose beyond that analysed by the trial judge when he considered admissibility, affected the trial judge's conclusions on each count on which he recorded a conviction.

(4) There are Insufficient Findings Independent of the Trial Judge's Errors in his Use of Evidence Across Counts for the Convictions to Stand

[54] I do not accept the Crown's contention that the convictions can stand because there were sufficient findings made by the trial judge unrelated to his use of similar fact evidence. The trial judge's reliance on evidence across counts cannot be untangled from his findings made only on evidence given in respect of a specific count. This is clear from his statement near the beginning of his reasons that he would use evidence across counts, and is buttressed by the examples below.

[55] The trial judge reached his conclusions on 34 of the counts together in five paragraphs. Those counts dealt with possession of stolen vehicles found on the Seneca Steel property, a stolen vehicle and trailer found on the Kucan property, and stolen parts found on the Kucan and Auto Enterprises properties. The trial judge did not describe how the evidence on any individual count satisfied him of the appellant's guilt on that count. Rather, he reached his conclusions about these counts on the evidence he applied across the counts. He referred not only to the sheer quantity of stolen property, but also to how the cross-count evidence led him to infer that the appellant ran a stolen car and parts business with a particular way of operating. The following statements made in those five paragraphs illustrate this:

Given the evidentiary connections, the [appellant's] detailed knowledge of his own business and the significant number of stolen parts from high end vehicles stacked like cordwood throughout the Kucan property I conclude that the [appellant] knew about all of the stolen property at [the Kucan property]. I am also convinced that he knew about the two vehicles at the Seneca Steel property, which are also linked to [the Auto Enterprises property] in the evidence, as I have set out…

Property was repaired at [the Auto Enterprises]. Legitimate and stolen inventory was stored at [Auto Enterprises], with the overflow going to the Kucan property…The number of parts from high end, recently stolen vehicles at [the Kucan property] was striking…The shop at the Kucan property was in an obvious state of disuse. All these nice new cars had to be chopped up at [Auto Enterprises]. Everybody must have noticed.

Procuring stolen vehicles and procuring wrecks to provide false VINs to disguise the stolen vehicles was a key part of the business…the absolute number [of stolen parts] present here, when taken with the documentary evidence found in the office, make the case that [the appellant] was deliberately dealing in stolen goods.

[56] Even when the trial judge analysed a count by itself, his analysis cannot be divorced from the conclusions he drew from using evidence across counts. Count 1 related to a stolen truck brought to the Auto Enterprises property, which the appellant testified he thought had been brought there to be repaired. It was tracked and seized by the police within a day of its arrival at Auto Enterprises. The trial judge did refer to certain evidence specific to that count, such as a smashed GPS monitor on the truck, which he considered to be an obvious indication that it was stolen. But he did not limit himself to that sort of evidence. He went on to say that:

This truck needed to be taken to a receiver of stolen goods, not a legitimate repair shop. The vehicle needed to be 're-VINned' not repaired...Of course the accused knew that this truck had just been stolen.

[57] When read with the trial judge's finding from evidence on other counts that procuring stolen vehicles and providing false VINs to disguise them was a key part of the appellant's business, the import of the above statement is clear. The trial judge used his conclusions from evidence across counts in his analysis of Count 1 (a count which did not involve a vehicle with a missing or altered VIN) to determine that the accused knew the truck was stolen. His statement in the course of his analysis on this count, that "the circumstantial evidence that [the appellant] was deliberately running a stolen car and parts operation is compelling", makes that clear.

[58] I reach the same conclusion with respect to the trial judge's brief analysis of the other counts. He did not only analyse specific events relating to each count, but came to a verdict based on the totality of the evidence on all counts. When convicting on Count 5, which dealt with a stolen vehicle found on the Auto Enterprises property, he said: "as with all aspects of Auto Enterprise's business, [the appellant] knew about the stolen property" (emphasis added).

[59] When convicting on Counts 6, 7, 8, 9 and 11, three of which were stolen property counts and two of which were fraud counts, he stated:

When [the appellant] needed some dirty work done, he often used [a business associate] ... [the appellant] knew about the stolen parts, or stolen vehicle, as the case may be ...I have no doubt that the accused knew about the stolen parts, whoever installed them. [Emphasis added.]

[60] When convicting on Count 10, a stolen property charge involving a vehicle at the Auto Enterprises property, he stated that "[t]he stolen vehicle was in the possession of the accused and again I have no doubt that he knew just where it came from" (emphasis added).

[61] These statements, taken together with the trial judge's earlier statement that he would use evidence across counts, do not support the view that the trial judge's reasons can be parsed as the Crown contends. His conclusion that the appellant was running a stolen car and parts operation with a particular method of operation, arrived at by applying evidence across counts, appears to be an important part of the foundation for his conclusions on each count.

[62] The fact that the trial judge acquitted the appellant on three counts does not undermine this conclusion. He acquitted on one count where there was insufficient evidence that the item was stolen. He acquitted on another where evidence was lacking that the item was ever on the appellant's business premises. And he acquitted on one fraud count because he was not satisfied that the purchaser of a vehicle with stolen parts had been deceived. These were issues unrelated to his use of similar fact evidence.

(5) The Curative Proviso Cannot be Applied

[63] The Crown also contends that any errors made by the trial judge in his use of similar fact evidence can be cured. I do not agree that the curative proviso in s.686(1)(b)(iii) of the Criminal Code can be invoked in this case. The relevant principles were recently set out in R v. R.V., 2019 SCC 41. The majority stated, at para 85, "The curative proviso set out in s. 686(1)(b)(iii) may be applied where there is no 'reasonable possibility that the verdict would have been different had the error . . . not been made'...Applying the curative proviso is appropriate in two circumstances: (i) where the error is harmless or trivial; or (ii) where the evidence is so overwhelming that the trier of fact would inevitably convict" (internal citations omitted).

[64] In my view the error here was neither harmless nor trivial. The trial judge ought to have determined each count on the basis of the evidence that was led related to that count. Instead he decided each count on the basis of evidence related to that count and to 46 other counts. He failed to treat evidence that was presumptively inadmissible as such; instead he drew important conclusions from it and applied them to each count on which he recorded a conviction. Nor, in my view, can we be assured that the similar fact inferences drawn by the trial judge would have been available to him had a proper inquiry been undertaken. The range of evidence, the number and variation of the counts, and the absence of complete argument on the issue prevents us from making that determination.

[65] Can it nonetheless be said that the evidence is so overwhelming that the trier of fact would inevitably have convicted? Naturally, in making this determination an appeal court must confine itself to the admissible evidence. Since we cannot resolve the admissibility of the similar fact evidence inferences, those inferences cannot be relied upon in assessing the inevitability of conviction. Without those inferences, the Crown cannot demonstrate that the case on each count was so overwhelming that the trier of fact would inevitably have convicted.

E. Conclusion

[66] In my view, the trial judge's errors in using evidence across counts require the convictions to be set aside.

[67] I would allow the appeal, set aside the convictions and direct a new trial.

Released: August 9, 2019

"B. Zarnett J.A." "I agree. K. Feldman J.A." "I agree. David M. Paciocco J.A."

Footnotes

[1] He found the disclosure in relation to that charge was insufficient.

[2] The appellant was sentenced in September 2015 to four years' imprisonment. He abandoned his sentence appeal.

[3] Credibility assessments are not subject to this restriction: Paciocco & Stuesser, at p. 89.

[4] I use the term admissibility inquiry to refer broadly to a determination of whether evidence of extrinsic discreditable conduct will be admitted, or whether already-admitted evidence relating to one count can be used to prove another count. Where evidence of extrinsic misconduct is involved, the term admissibility inquiry is particularly apt, since the issue is not only how the evidence will be used, but also whether it can be heard at all. Where the issue is whether the evidence on one count is properly taken into account (i.e. is admissible) in relation to another, the inquiry will not necessarily take place at the time the evidence is proffered, but may take place later, when the use of the evidence already admitted on one count is being considered in relation to another.

[5] Failing to conduct an admissibility inquiry is an error of law. There may be circumstances in which such an error is not fatal on appellate review: Sopinka, Lederman & Bryant, at § 11.163, citing R. v. Graham, 2015 ONCA 113, discussed later in these reasons.