Court of Appeal for Ontario

Date: 2021-11-25 Docket: C62285

Before: Fairburn A.C.J.O., MacPherson and Benotto JJ.A.

Between: Her Majesty the Queen, Respondent and Marc Leduc, Appellant

Counsel: Howard L. Krongold, for the appellant Grace Choi, for the respondent

Heard: November 19, 2021

On appeal from the convictions entered by Justice Hugh R. McLean of the Superior Court of Justice, sitting with a jury, on June 2, 2016.

Reasons for Decision

[1] This is an appeal from two convictions for first-degree murder. The appeal was dismissed with reasons to follow. These are our reasons.

[2] Two women were murdered about three years apart. They were vulnerable sex workers who lived and worked in the Ottawa area. The circumstances surrounding the murders were highly similar. Both victims were found dead in areas frequented by the public. Both victims showed signs of significant and similar struggle, resulting in similar injuries to their face and scalp areas. Both victims had foreign objects inserted into their bodies while they were still alive – a plastic bag in one case and a tree branch in the other. Both victims were found with the foreign objects left inside of them. Both victims were found naked from the waist down. Both victims were found with their bras lifted above their breasts. Both victims had suffered fresh injuries to their vaginal and pubic areas. And both victims were asphyxiated by compression to their necks.

[3] The appellant’s DNA was found on both women’s bodies. He was charged and tried for both murders in a single trial. Prior to the trial, the appellant brought an application under s. 591(3)(a) of the Criminal Code, R.S.C. 1985, c. C-46, which permits the trial judge to sever the counts where “the interests of justice so require”. The trial judge considered the relevant factors and gave multiple reasons for dismissing the application, the most significant of which was the “striking similarity between the two events”, which made it “likely” that the Crown’s similar act evidence application would be allowed later in the trial: see R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 18.

[4] At trial, the elements of first-degree murder were not in dispute. The only real issue for the jury’s consideration was whether the Crown had proven the appellant’s identity as the killer beyond a reasonable doubt. To help satisfy its burden, the Crown successfully brought a similar act evidence application, permitting the jury to consider the evidence of each woman’s murder across counts.

[5] The appellant raises three issues on appeal. Since the appellant maintains that the first two issues are inextricably linked, they will be considered together.

[6] First, the appellant argues that the trial judge erred in admitting the similar act evidence across counts. In specific, the trial judge is said to have misunderstood the purpose for admitting the evidence across counts, a misunderstanding that caused him to apply an erroneously diluted standard for admission. Second, and relatedly, the appellant argues that this first error pervaded the pre-trial severance application, which was primarily denied because of the likely success of the later similar act application.

[7] The trial judge reasoned that the purpose for admitting the evidence across counts was to rebut the possibility that the defence would suggest to the jury that it was sheer coincidence that the appellant’s DNA was found on both victims’ bodies. The trial judge concluded that the circumstances surrounding the two murders held such “striking similarity” that, considered across counts, the evidence would work to rebut the suggestion of coincidence.

[8] The appellant contends that, whether or not the evidence could be characterized as rebutting coincidence, the cross-count evidence was really being tendered to prove the appellant’s identity as the murderer in both cases. By failing to appreciate that the similar act evidence was directed at proving identity, rather than disproving coincidence, the trial judge is said to have failed to apply the correct admissibility test.

[9] The appellant further contends that, had the trial judge approached the matter correctly, he would have appreciated – as this court should – that the evidence fell short of the high degree of similarity required when the evidence is admitted across counts to prove identity.

[10] We do not agree that the trial judge applied the wrong admissibility test or that the evidence fell short of the required degree of similarity.

[11] When similar act evidence is used to prove identity, the law insists upon a particularly high degree of similarity between the acts, one that makes it “likely that they were committed by the same person”: R. v. Arp, [1998] 3 S.C.R. 339, at para. 50. The required degree of similarity has been described differently over the years, including that the acts are “strikingly similar” in nature: R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at paras. 89, 98. Where the purportedly similar acts meet that standard, “the possibility that the accused would repeatedly be implicated … purely as a matter of coincidence is greatly reduced”: Arp, at para. 43.

[12] Regardless of whether the trial judge described the issue in dispute as one of proving identity or disproving coincidence, he found that there was a “striking similarity” between the murders. In the trial judge’s ruling on the pre-trial severance application, he observed that, “consider[ing] all of the evidence, it would appear there is a striking similarity between the two events.” He explained his conclusion in some detail. In particular, he relied on both victims’ autopsy reports and the testimony of one victim’s medical examiner, all of which demonstrated the rarity of strangulation deaths, objects placed in victims’ bodies, and sexually motivated homicides.

[13] The trial judge’s view did not change after the Crown’s case had been called and he was asked to rule on the cross-count similar act evidence application. In that ruling, the trial judge considered Arp and adopted his earlier conclusion that the two murders were strikingly similar in nature.

[14] While the appellant points to some dissimilarities between the murders, such as where the foreign objects were found within the bodies of the deceased women, it is not for this court to redo the trial judge’s analysis. In light of the many strong similarities canvassed earlier in these reasons, the trial judge’s conclusion was entirely reasonable. His ultimate assessment of the probative value and prejudicial effect of the evidence, and where the balance lay as between them, involved an “exercise of judicial discretion and, correspondingly, significant deference on appellate review”: R. v. Doodnaught, 2017 ONCA 781, 358 C.C.C. (3d) 250, at para. 153, referring to R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73.

[15] As for the impugned severance ruling, it was largely based upon the view that the similar act application would “likely” succeed. The appellant does not suggest otherwise. In light of the conclusion we have reached on the similar act ruling, we see no basis to interfere with the trial judge’s severance ruling.

[16] Third, the appellant argues that, even if this court finds that the similar act evidence was properly admissible across counts, the jury was incorrectly instructed on how to approach that evidence. The jury was told that they could use the evidence across counts “only for one purpose … to disprove that the two incidents were merely the result of coincidence, but absolutely for no other purpose.”

[17] The jury was instructed that, before using the evidence to disprove coincidence, they had to first “make certain findings”, specifically whether there was a “distinct pattern of conduct” by the appellant, in which case they “might find that it defies coincidence.” The trial judge walked the jury through the similarities and differences between the murders. He carefully warned them to avoid improper propensity reasoning. He then reminded the jury that they could only use the evidence to “disprove the possible coincidence” if there was a distinctive pattern of conduct which suggested that the two murders were “similar events.” If the jury was unable to find “such a distinctive pattern of conduct”, they were instructed to “not use the evidence to disprove a coincidence nor for any other purpose.”

[18] The appellant argues that this instruction fell short of the mark. It is said to have failed to bring home to the jury that the evidence was available for their consideration to prove the identity of the perpetrator. Given that it was admitted for purposes of identity, the jury should have been instructed that there was only one way in which the evidence from one count could be used to reach a verdict on the other count: if the “way in which the offences charged were committed is so similar that the same person likely committed both (all) of them”: D. Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), Final 28-B (Evidence of Other Count(s) Similar Acts to Prove Identity of Perpetrator).

[19] Respectfully, the difficulty with this submission is that it conflicts with the defence position at trial. The trial Crown asked the trial judge to provide the classic jury instruction on identity as just described, but defence counsel objected. Indeed, defence counsel actively dissuaded the trial judge from giving such an instruction, explaining that it was “not the appropriate charge to give”, and that the jury should be instructed about rebutting “the defence of innocent association [with the murdered women] which is not the same thing as to prove identity.” This position further accorded with defence counsel’s closing address, where the jury was told, “We’ve all seen in our lives how coincidences can and do happen.” Now, on appeal, the appellant says that the very instruction resisted at trial by experienced defence counsel should have been given.

[20] Therefore, this is not simply a case where the defence failed to object to a charge. Rather, this is a case where defence counsel asked that a charge not be given, the trial judge acceded to that request, and now, on appeal, the absence of that charge is said to constitute reversible error. In our view, this position cannot succeed.

[21] Aside from the fact that the trial judge acceded to the request made by defence counsel, the language emphasizing a “distinctive pattern of conduct” was adequate to the task.

[22] In our view, the factual circumstances of this case meant that the jury’s decision would not have turned on a distinction between the wording used (“distinctive pattern of conduct”) and the wording that the appellant now says should have been used (“so similar that the same person likely committed both”). Indeed, in the circumstances of this case, where the appellant’s DNA was found on both victims’ bodies, the “distinctive pattern of conduct” expression may well have inured to the appellant’s benefit. In any event, given the similarities between the murders, there was a distinctive pattern of conduct that demonstrated that they were likely committed by the same person. In these circumstances, the wording utilized in the charge was adequate to the task.

[23] The appeal is dismissed.

Fairburn A.C.J.O.

J.C. MacPherson J.A.

M.L. Benotto J.A.