SUPREME COURT OF CANADA

Sweitzer v. The Queen, [1982] 1 S.C.R. 949

Date: 1982-06-23

James Dennis Sweitzer (Accused/Appellant) Appellant;

and

The Queen (Respondent) Respondent. File No.: 16277.

1982: February 8; 1982: June 23.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer M.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Evidence — Admissibility — Similar fact evidence Whether or not evidence from those episodes without a direct connection to accused should be admitted.

This appeal raised the question of the admissibility of evidence of "similar facts" involving an accused, tendered in proof of the allegations in the indictment upon which he was tried.

Held: The appeal should be allowed.

The admission of similar fact evidence should be confined to cases where there is some evidentiary link, direct or circumstantial, with the accused. It was casting the net too widely to admit evidence of the eleven episodes not shown to be connected with the accused because of the similarity with the incidents for which there was a testimonial connection with the appellant.

Makin v. The Attorney-General for New South Wales, [1894] A.C. 57; Boardman v. Director of Public Prosecutions, [1974] 3 All E.R. 887; Harris v. Director of Public Prosecutions, [1952] A.C. 694, applied; R. v. Hurren, [1962] Crim. L.R. 770; Thompson v. The King, [1918] A.C. 221, referred to.

APPEAL from a judgment of the Alberta Court of Appeal (1980), 1980 ABCA 207, 26 A.R. 208, dismissing an appeal from conviction by Holmes J. Appeal allowed.

Brian E. Devlin, for the appellant.

Bruce Duncan, for the respondent.

The judgment of the Court was delivered by

MCINTYRE J. —This appeal raises the question of the admissibility of evidence of "similar facts"

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involving an accused, tendered in proof of the allegations in the indictment upon which he is tried.

Between April 11, 1974 and October 19, 1978, an interval of about four and a half years, the police investigated a series of fifteen sexual attacks which took place in Calgary against various women. On October 18, 1978 the appellant was apprehended in a woman's apartment at about 5:50 a.m. She had been alone and was awakened by the appellant's entry into her apartment. She raised an alarm and after a brief struggle the police arrived and arrested him. In January of 1979 a preliminary hearing was held and as a result the appellant was committed for trial upon fifteen charges, one arising out of each of the fifteen assaults. The indictment which was drawn for presentment at trial contained fifteen counts which included charges of rape, indecent assault, and breaking and entry with intent to commit an indictable offence. Prior to trial a motion was made to Moshansky J. by the appellant which led to an order severing the various counts. The Crown then elected to proceed on count one which provided:

That he, at Calgary, in the Judicial District of Calgary, Alberta, on or about the 12th day of April, A.D. 1974, being a male person, did unlawfully have sexual intercourse with Gail Margaret Page nee Bennie, a female person who was not his wife, without her consent, thereby committing rape, contrary to the Criminal Code.

At the commencement of the trial, because the Crown wished to adduce in evidence the particulars and circumstances of the fourteen other offences referred to in the indictment, the jury was excused and a voir dire was held to determine whether evidence of the other assaults and attempts was properly admissible as evidence of similar facts. The entire evidence in the trial was led on the voir dire, including all the evidence the Crown tendered relating to the other fourteen episodes. All the evidence so adduced was found by the trial judge to be admissible and thereafter the jury was recalled and it was repeated in their presence.

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The evidence led in respect of the offence referred to in count 1 established that the complainant Page was awakened early in the morning of April 12, 1974 in her apartment by a voice which told her not to scream or cry out or she and her infant daughter would be hurt. She felt an arm over her head and something sharp at her back. She was taken out of bed, her hands were held behind her back, and she was pushed into the bathroom where the assailant forced her to have intercourse with him. She was blindfolded with a towel in the bathroom and then taken to the living room where she was put upon the floor and an attempt was made at anal penetration and an attempt made to force her to perform fellatio upon the intruder. Her assailant left her after about an hour. She was unable to identify him and could give no evidence upon which an identification could be based. It is evident that her evidence, if believed, would have justified a conviction of rape save for the fact that there was nothing in it from which the appellant could be identified as the attacker. The Crown was thus compelled in order to remedy this deficiency to rely on the evidence of the other episodes and the evidence of a detective Ogg who on one occasion saw a man whom he identified as the accused looking in a window at the rear of a motel at which certain of these events had occurred.

The allegedly similar facts fall for the purpose of this discussion into two groups. Firstly, there are those forming the basis of counts 2, 4, 5, 6, 7, 8, 9, 10, 12, 13 and 14. In these eleven episodes there is no evidence of identification of the appellant save for the alleged similarity in the conduct of the assailant to the conduct attributed to the appellant in the four episodes referred to hereafter. The second group comprises allegations in counts 3, 11 and 15 and the evidence of Detective Ogg. In these four episodes there is some direct evidence of the identification of the appellant as the assailant. In counts 3 and 11 the victims of the assault swore to his identity, in count 15 he was apprehended by the police at the scene, and Detective Ogg swore he was the man seen to be peering in a window at the rear of a motel who fled when the police came

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upon him. Detective Ogg's observations were made on an occasion separate in time from any of the attacks forming the subject of any of the counts. It is the admission of all of this evidence which was approved in the Court of Appeal that forms the basis of this appeal.

The question of the admissibility of similar fact evidence has been the subject of much legal writing to be found in the decided cases and textbooks and in the academic articles and commentaries. The general principle stated by Lord Herschell in Makin v. The Attorney-General for New South Wales, [1894] A.C. 57, at p. 65, has been largely accepted as the basis for the admission of this evidence. He said:

In their Lordships' opinion the principles which must govern the decision of the case are clear, though the application of them is by no means free from difficulty. It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.

Over the years in seeking to apply this principle judges have tended to create a list of categories or types of cases in which similar fact evidence could be admitted, generally by reference to the purpose for which the evidence was adduced. Evidence of similar facts has been adduced to prove intent, to prove a system, to prove a plan, to show malice, to

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rebut the defence of accident or mistake, to prove identity, to rebut the defence of innocent association, and for other similar and related purposes. This list is not complete.

This approach has been useful because similar fact evidence by its nature is frequently adduced for its relevance to a single issue in the case under trial. It has however involved, in my opinion, a tendency to overlook the true basis upon which evidence of similar facts is admissible. The general principle described by Lord Herschell may and should be applied in all cases where similar fact evidence is tendered and its admissibility will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission whatever the purpose of its admission. This approach finds support in Boardman v. Director of Public Prosecutions, [1974] 3 All E.R. 887 and is implicit in the words of Lord Herschell in the Makin case. It has also found approval in academic writings on the subject (see: "Similar Fact Evidence--Catchwords and Cartwheels" (1977), McGill L.J. 60, by Professor Sklar, and "Similar Facts after Boardman", (1975) 91 Law Q. Rev. 193, by L.H. Hoffmann, and see, as well, the commentary by Professor J.C. Smith on R. v. Hurren, [1962] Crim. L.R. 770.) I agree with the words of Lord Morris in Boardman, supra, where he said at p. 893:

In his speech in Harris v Director of Public Prosecutions Viscount Simon pointed out that it would be an error to attempt to draw up a closed list of the sorts of cases in which the principle operates. Just as a closed list need not be contemplated so also, where what is important is the application of principle, the use of labels or definitive descriptions cannot be either comprehensive or restrictive. While there may be many reasons why what is called 'similar fact' evidence is admissible there are some cases where words used by Hallett J. are apt. In R. v Robinson he said:

'If a jury are precluded by some rule of law from taking the view that something is a coincidence which is against all the probabilities if the accused person is innocent, then it would seem to be a doctrine of law which prevents a jury from using what looks like ordinary common sense.'

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But as Viscount Simon pointed out in Harris v Director of Public Prosecutions evidence of other occurrences which merely tend to deepen suspicion does not go to prove guilt; so evidence of 'similar facts' should be excluded unless such evidence has a really material bearing on the issues to be decided. I think that it follows from this that, to be admissible, evidence must be related to something more than isolated instances of the same kind of offence.

The general principle enunciated in the Makin case by Lord Herschell, should be borne in mind in approaching this problem. The categories, while sometimes useful, remain only as illustrations of the application of that general rule.

Before evidence may be admitted as evidence of similar facts, there must be a link between the allegedly similar facts and the accused. In other words there must be some evidence upon which the trier of fact can make a proper finding that the similar facts to be relied upon were in fact the acts of the accused for it is clear that if they were not his own but those of another they have no relevance to the matters at issue under the indictment. If authority for this proposition be required, it may be found in Harris v. Director of Public Prosecutions, [1952] A.C. 694. Viscount Simon dealt with a case somewhat similar to the case at bar. He briefly summarized the facts at pp. 695 and 696, as follows:

The appellant was a member of the City of Bradford Police Force. He was tried at the Leeds Autumn Assizes in November, 1951, before Pearson J., on an indictment containing eight counts charging him with office-breaking and larceny on a series of dates in May, June and July, 1951, by breaking into and entering the premises of a company of fruit and vegetable merchants situated in an enclosed and extensive Bradford market and stealing therefrom various sums of money. In every case the money stolen was only a part of the amount that the thief, whoever he was, might have taken; in every case the same means of access was used; and in every case the theft occurred in a period during part of which the appellant was on duty in uniform in the course of patrolling the market, and apparently at an hour when

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most of the gates to the market were closed to the general public. But, on the first seven of these occasions, there was no further evidence to associate the appellant specifically with the thefts.

A motion to sever the counts and proceed to trial separately on each count failed and evidence was adduced respecting all counts. The appellant was acquitted on the first seven but convicted on the eighth. The appeal was brought because, although the appellant had only been convicted on the eighth count, it was complained that no direction was given to the jury to the effect that they could not consider the evidence on the first seven counts in reaching their conclusion upon the eighth. In dealing with the matter Viscount Simon said at p. 708:

It is, of course, clear that evidence of "similar facts" cannot in any case be admissible to support an accusation against the accused unless they are connected in some relevant way with the accused and with his participation in the crime.

He then referred to the words of Lord Sumner in Thompson v. The King, [1918] A.C. 221, and continued:

It is the fact that he was involved in the other occurrences which may negative the inference of accident or establish his mens rea by showing "system". Or, again, the other occurrences may sometimes assist to prove his identity, as, for instance, in Perkins v. Jeffrey. But evidence of other occurrences which merely tend to deepen suspicion does not go to prove guilt.

Lord Morton of Henryton concurred with Viscount Simon, saying, at p. 715:

I desire only to add that, in my view, evidence as to the thefts which occurred on the first seven occasions was not admissible for the purpose of the trial of the appellant on the eighth count, because the appellant was not proved to have been near the shop, or even in the market, at the time when these thefts occurred. It is, however, clear that the judge invited the jury to take that evidence into account when considering the eighth count.

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And Lord Tucker said, at p. 715:

I agree with my noble and learned friend, Lord Morton of Henryton, that the evidence with regard to the first seven occasions was irrelevant to the charge on the eighth count, but was left to the jury as relevant.

Dealing with the eleven episodes I say at once that in my view evidence relating to them was inadmissible and ought not to have been admitted. I put that proposition simply upon the footing that they afford no evidence of identification of the appellant, because, despite the existence of varying degrees of similarity between the acts revealed in the evidence and the facts of the case under trial, there is no evidence which connects the appellant with any of those episodes. They are not shown to be connected with him and cannot therefore be relevant as evidence against him. It was the similarity between the eleven incidents and the four incidents which led the learned chief justice to consider that evidence of the eleven incidents was admissible. McGillivray C.J.A. in his reasons, speaking for a unanimous court of appeal, said:

We are all of the view that the only link with the accused in 12 cases [the eleven cases referred to above and the count in Count No. 1] was the similarity of his technique; but there is sufficient similarity in technique to that in the three cases where the accused was identified, in our opinion, to permit the findings to be admissible as a matter of identifying the accused as being the attacker in the Page case. We are, therefore, of the opinion that the Appeal on the grounds of admissibility of what is said to be similar fact evidence, fails.

In my view, this approach seems to proceed on the basis that, while the eleven episodes themselves are not shown to be connected with the accused, they are made admissible because of the similarity to the four incidents in respect of which there had been a testimonial connection with the appellant. They should therefore be admitted into evidence, as it were, upon the coat tails of the four episodes. In my view, this is to cast the net too wide in a search for evidence. This line of reasoning could

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make evidence of any nocturnal rape committed in Calgary in a period of four and a half years, where some similarity could be shown, receivable in evidence against the appellant. I would confine the admission of such evidence to cases where there is some evidentiary link, direct or circumstantial, with the accused.

It is my opinion that the error which was made by the admission into evidence of the eleven episodes was so highly prejudicial that the only remedy open is a new trial. Because there is to be a new trial, I make no comment in respect of the relevancy of the four episodes involving some evidentiary connection with the appellant because I do not wish to embarrass the trial judge in his approach to the matter. The question of the admissibility of that evidence I leave to be resolved on the new trial. I would, accordingly, allow the appeal and direct a new trial.

Appeal allowed.

Solicitor for the appellant: Brian E. Devlin, Calgary.

Solicitor for the respondent: Paul Chrumka, Calgary.