R. v. Perrier, [2004] 3 S.C.R. 228, 2004 SCC 56

Justin Lance Perrier Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Perrier

Neutral citation: 2004 SCC 56.

File No.: 30002.

2004: May 19; 2004: September 30.

Present: Major, Bastarache, Binnie, Deschamps and Fish JJ.

on appeal from the court of appeal for british columbia

Criminal law — Evidence — Admissibility — Similar fact evidence — Identification — Similar fact evidence of crimes committed by gang in three separate incidents put to jury for purpose of identifying particular gang member — Membership in gang varying — Whether evidence linking gang to one crime could be used against one member as similar fact evidence indicative of his participation in other crimes committed by same gang.

Criminal law — Charge to jury — Group similar fact evidence — Similar fact evidence of crimes committed by gang in three separate incidents put to jury for purpose of identifying particular gang member — Membership in gang varying — Whether trial judge erred in directing jury that evidence admitted with respect to each incident admissible in proving guilt of accused with respect to others.

The accused was charged with several offences arising from three separate incidents of gang home invasions that occurred in the same area over a four‑week period. The method of operation adopted by the gang on each of these occasions was distinctive. The accused was first convicted of robbery and break and enter relating to the third incident. The charges in this case relate only to his alleged involvement in the first two incidents. The issue at trial was his identity. Although the Crown admitted that membership in the gang rotated, the Crown asserted that the accused was involved in all three incidents. The accused’s role was also alleged to have varied. The trial judge instructed the jury that “evidence admitted with respect to each of the three incidents is admissible in proving the guilt of each accused on the others”. The jury convicted the accused on all counts. The majority of the Court of Appeal upheld the convictions.

Held: The appeal should be allowed and a new trial ordered.

The trial judge erred in directing the jury that they could consider the evidence from one incident as similar fact evidence with respect to identification, not of the gang but of the accused, for the other incidents. Similar fact evidence of group activities is admissible in order to identify a group or gang responsible for a particular crime. Where several crimes were committed with a unique modus operandi, and the objective improbability of coincidence is high, the trier of fact should be permitted to draw an inference that the same gang committed the acts. However, where evidence of similar offences committed by a gang is being introduced not just to identify the gang itself but to identify a particular member, a sufficient connection between the individual and the crimes of the group must be established. Where, as here, membership in the group is not constant, this additional requirement will be satisfied if (a) the accused’s role was sufficiently distinctive that no other member of the group or other person could have performed it; or (b) there is independent evidence linking the accused to each crime. Without this additional link, the required nexus between the similar fact evidence and the acts of a particular accused is absent, and it will not have sufficient probative value to outweigh the prejudice caused.

In this case, the similar fact evidence was admissible to attach blame to the gang itself but not to an individual member of the rotating gang. To use evidence of one crime as proof of involvement in others is only appropriate where the similarities are so striking as to preclude coincidence. The similarities between the incidents demonstrate that it was likely the same gang that committed the offences but do not point to any individual trademark or characteristic that can serve to identify the accused. The independent evidence against him was also insufficient to link him to each of the gang’s crimes. There was therefore no basis upon which this similar fact evidence should have been put to the jury for the purposes of identification.

Cases Cited

Referred to: R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56; R. v. Shearing, [2002] 3 S.C.R. 33, 2002 SCC 58; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339; R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697; R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717; Sweitzer v. The Queen, 1982 CanLII 23 (SCC), [1982] 1 S.C.R. 949; R. v. Brown, [1996] E.W.J. No. 2403 (QL); R. v. Lee, [1996] E.W.C.A. Crim. 59.

APPEAL from a judgment of the British Columbia Court of Appeal (2003), 187 B.C.A.C. 214, 307 W.A.C. 214, 178 C.C.C. (3d) 97, 14 C.R. (6th) 88, [2003] B.C.J. No. 2187 (QL), 2003 BCCA 508 (sub nom. R. v. Chan), upholding the accused’s convictions. Appeal allowed.

Peter Leask, Q.C., and Jeremy Gellis, for the appellant.

Bruce Johnstone, for the respondent.

The judgment of the Court was delivered by

Major J. —

I. Introduction

1 On April 21, 2000, the appellant, Justin Lance Perrier and co-accused, Chi Cheong Chan, were convicted of a number of counts of breaking and entering, robbery, unlawful confinement and possession of stolen property. The charges arose from three separate incidents of gang home invasions that occurred in the Vancouver area over a four-week period.

2 The method of operation adopted by the gang was distinctive. The only issue at trial was the identity of the appellant. The theory of the Crown was that membership in the gang rotated, but that the appellant was involved in all three incidents. The trial judge, without objection from counsel, instructed the jury that “evidence admitted with respect to each of the three incidents is admissible in proving the guilt of each accused on the others”, which I take to mean that evidence linking the gang to one offence could be used against the appellant, a member of the gang, as similar fact evidence indicative of his participation in the other offences committed by the same gang.

3 The jury convicted the appellant of all charges. The majority of the Court of Appeal dismissed the appeal, Ryan J.A. dissenting. The issue on this appeal was whether the trial judge erred in directing the jury that they could consider the evidence on each respective count as similar fact evidence on the issue of identification of the appellant on the other counts.

4 The appeal is allowed. The use of one incident as evidence of others is only applicable where the similarities are so striking as to preclude coincidence. The similarities between the incidents demonstrate that it was likely the same gang that committed the offences but do not point to any individual trademark or characteristic that can serve to identify the appellant. I agree with the reasons of Ryan J.A. that the trial judge erred in directing the jury that they could consider the evidence on one count as similar fact evidence on the others as it applied to the appellant. The similar fact evidence was admissible to attach blame to the gang itself but not to an individual member of the rotating gang.

II. Factual Background

5 On December 15, 1997, a gang of men invaded the home of a family located on East 19th Avenue in Vancouver. On January 2, 1998, a gang of men invaded a family residence located on Osler Street, while on January 14, 1998, a similar incident occurred on Fraserview Drive. The method of operation adopted by the gang on each of these occasions was distinctive.

6 One of the group’s members would approach the targeted home disguised as a postman carrying a package. The phoney postman would ring the doorbell, while his two accomplices prepared to overpower the person who answered it. In all three incidents the person who answered the door was an Asian woman. Once inside, the intruders contacted others who then entered the home.

7 In all three incidents the intruders bound the occupant or occupants of the home with duct tape while members of the gang searched the home for valuables. The victims later supplied sketchy and inconsistent descriptions of the intruders, including their number. It was thought that five or six people were involved in each incident.

8 The appellant was first charged and convicted of robbery and break and enter relating to the third incident, on Fraserview Drive. The charges at issue before this Court relate only to his alleged involvement in the first two incidents. His trial on these charges occurred only after his Fraserview conviction.

9 The issue at trial was his identity. The Crown’s theory was that two Asians and three or four Caucasians were involved in each incident. Although the Crown admitted that membership in the gang rotated, the Crown asserted that the appellant was involved in all three incidents. The appellant’s role was also alleged to have varied. He was said to have dressed as the postman in one incident, and to have assisted in overpowering the victims in the others.

10 The other evidence against the appellant consisted of the testimony of Mr. Wang and the evidence collected upon the appellant’s arrest on January 14, 1998.

11 Mr. Wang had previously been convicted of committing offences relating to the East 19th Street and Fraserview Drive incidents, been sentenced to a lengthy period of incarceration and faced deportation to Taiwan. In return for his evidence, Mr. Wang was to receive assistance with both the parole board and immigration authorities, and he was placed in the witness relocation program.

12 The appellant was arrested two to three blocks away from, and within minutes of, the Fraserview robbery on January 14, 1998. The victim of the robbery had a gash on her forehead. At the time of his arrest he appeared to have blood on his pants as well as on his jacket found nearby. The jacket pockets contained a cell phone, a pager and keys to his apartment suite. A subsequent search of the apartment found stolen speakers belonging to one of the victims of the Osler street robbery. It is important however that the appellant did not have exclusive use of the apartment but shared it with Jesse and Jean Lahn, alleged by Mr. Wang to also be participants in some of the incidents. Identification belonging to both Jesse Lahn and the appellant was found in the bedroom with the stolen property.

13 There was also evidence of a number of calls between the appellant and Mr. Wang just before and after all three incidents, including an intercepted phone call between Mr. Wang and the appellant, characterized by Ryan J.A. in the Court of Appeal as a conversation from which the jury might infer that the appellant and Mr. Wang were concerned that Michael Braun might be a “snitch” ((2003), 187 B.C.A.C. 214 (sub nom. R. v. Chan), 2003 BCCA 508, at para. 9).

III. Judicial History

A. British Columbia Supreme Court

14 The trial proceeded by way of direct indictment. The trial judge, without objection from counsel, instructed the jury that “evidence admitted with respect to each of the three incidents is admissible in proving the guilt of each accused on the others”. The appellant was convicted on all counts.

B. British Columbia Court of Appeal

15 The majority of the Court of Appeal dismissed the appeals. Ryan J.A., dissenting, would have allowed the appeals on the basis that the trial judge erred in directing the jury that they could consider the evidence of gang activity as similar fact evidence against the appellant.

IV. Issues

16 The question in this appeal is whether the trial judge should have directed the jury that they could consider the evidence from one incident as similar fact evidence with respect to identification, not of the gang but of the appellant, for the other incidents. The problem is whether evidence linking the appellant to one crime can be used to infer participation in other crimes, likely committed by the same gang, where membership in that gang is not fixed.

V. Analysis

A. Admissibility of Similar Fact Evidence for the Purpose of Identification

17 The law governing the admissibility of similar fact evidence is well established. It is presumptively inadmissible as it is propensity reasoning: see R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56; R. v. Shearing, [2002] 3 S.C.R. 33, 2002 SCC 58; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339; R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697; R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717.

18 The onus falls on the prosecution to satisfy the trial judge, on a balance of probabilities, that the probative value of the evidence in relation to a particular issue outweighs its prejudicial effect. Where the similar fact evidence is relevant only to support the prohibited inference (that the accused is the type of person who, because of past conduct or character, is predisposed to commit the type of crime for which he is being tried), it will not outweigh the prejudice caused.

19 The rationale for the admission and use of similar fact evidence where identity is in issue is the improbability that two persons would display the same configuration of matching characteristics in committing a crime. Thus a jury is not being asked to infer that the accused is the type of person who would commit the offence but to conclude that he is exactly the person who did commit the offence. This inference is made possible only if the high degree of similarity between the acts renders the likelihood of coincidence objectively improbable. See Arp, supra, at para. 45, per Cory J.:

Where, as here, similar fact evidence is adduced on the issue of identity, there must be a high degree of similarity between the acts for the evidence to be admitted. For example, a unique trademark or signature will automatically render the alleged acts “strikingly similar” and therefore highly probative and admissible. In the same way, a number of significant similarities, taken together, may be such that by their cumulative effect, they warrant admission of the evidence.

20 In Arp, Cory J. stated that a high degree of similarity was required in order to establish the objective improbability that the accused’s involvement in the alleged acts was the product of coincidence. This point was considered in Handy, supra, at para. 91, where Binnie J. equated the possibility of coincidence with mistaken identity or a mistake in the character of the act. The point is that we must be cautious when using propensity evidence in the context of identity. We want to be sure, on a balance of probabilities, that the same person committed the acts in question such that we can safely say it is not a coincidence nor a case of mistaken identity.

21 In determining whether the acts are similar enough to admit, the focus should first be on the acts themselves and not on evidence of the accused’s involvement in those acts. A high degree of similarity between the acts is required in order to be admissible. The greater the similarity between the acts, the greater the probative value of the similar fact evidence.

22 The similarity between the acts must be determined on a case-by-case basis after considering all relevant factors. Such factors include, but are not limited to: proximity in time and place, number of occurrences of the similar acts and similarities in detail and circumstances: see Handy, supra, at para. 82.

23 Once the trial judge has determined that the crime charged and the similar act were likely committed by the same person, the judge must then consider whether there is evidence linking the accused to the similar act. A link between the accused and the similar acts is a precondition to admissibility: see Sweitzer v. The Queen, 1982 CanLII 23 (SCC), [1982] 1 S.C.R. 949, at p. 954, as cited with approval in Arp, supra, at para. 54:

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 the similar facts relied upon were not in fact the acts of the accused, then they have no probative value.

24 The threshold is not particularly high. The trial judge must determine whether there is “some evidence” linking the accused to the similar acts. However, evidence of mere opportunity or possibility is not sufficient.

25 In the group context, the link between an accused and the similar acts of a group is particularly important. Where a group commits a series of crimes with a distinct modus operandi, such as in the case before the Court, the “signature” of the offence is the “signature” of the group only. If the Crown can prove that membership in the gang never changed and that all members were present and participating in all offences, then the signature of the group will be the signature of the accused such that a similar fact instruction will likely be justified (provided that the overall probative value of the evidence outweighs its prejudice). However, where group membership was not constant, the fact that an individual may have been a member of the gang on one occasion proves nothing more than a mere possibility that he was a member on another occasion. In this case the evidence of group activity must be accompanied by evidence linking the individual to each of the group’s offences for which he has been charged, either by virtue of the distinctiveness of his role or by other independent evidence. Without this additional link, the required nexus between the similar fact evidence and the acts of a particular accused is absent, and the similar fact evidence will not have sufficient probative value to outweigh the prejudice caused.

B. Application of Similar Fact Evidence to Crimes Committed by Groups

26 Where it is highly improbable that two different groups employing the same modus operandi committed the crimes at issue, the evidence may be used to support the inference that the same gang committed all the acts. As pointed out by Ryan J.A., at para. 23 of her reasons in this case: “With gang activity, however, while it may be possible to identify several crimes as the work of one group, it does not follow with any degree of certainty that membership in the group is the same from crime to crime.” It would be illogical to infer individual liability without further evidence of individual participation.

27 The respondent Crown relied on a series of English cases to support its submission that similar fact evidence could be used in the context of crimes committed by groups. In particular, it relied on R. v. Brown, [1996] E.W.J. No. 2403 (QL) (C.A.), and R. v. Lee, [1996] E.W.C.A. Crim. 59 (QL), where, in both cases, the England and Wales Court of Appeal (Criminal Division) admitted evidence linking an appellant to one group crime as evidence against him on the other.

28 In Lee, supra, the England and Wales Court of Appeal (Criminal Division) held that

. . . what may be called “group identification evidence” was admissible against each of the defendants whether or not there was other evidence against them individually on count 2.

However, the court qualified this statement by adding that:

This would be subject always to any application which might be made on their behalf as individuals which called for an assessment of the overall strength of the cases against them.

29 Similarly, in Brown, supra, the England and Wales Court of Appeal (Criminal Division) stated, at para. 82:

The issue for the jury, once they are satisfied that it is the same gang who have committed both groups of offences, will be whether the prosecution have established on all the admissible evidence that the particular defendant was a member of that gang and, where the prosecution say that that defendant was a member of the gang on both occasions, whether the totality of the evidence has established that beyond reasonable doubt. [Emphasis added.]

30 Ryan J.A. reviewed the English case law and concluded that it stood for the proposition that similar fact evidence which identifies a certain group as responsible for a series of crimes may be considered at the trial of a particular member if there is something more in the evidence than the fact that the same gang committed two or more offences. I agree. The English courts were looking at the totality of the evidence against the individual, not solely the similar fact evidence of a group crime.

31 The proper approach to the case of similar fact evidence as it pertains to groups or gangs is to adopt a framework that goes one step beyond the basic prejudice versus probative value assessment. Similar fact evidence of group activities should be admissible in order to identify a group or gang responsible for a particular crime. Where, as here, you have several crimes committed with a unique modus operandi, and the objective improbability of coincidence is high, the trier of fact should be permitted to draw an inference that the same gang committed the acts. At this first stage, identification of the group, the trier of fact may rely on the factors outlined by Binnie J. in Handy to assess, according to the test in Arp, whether the evidence of one group activity can be used to identify the group responsible for another. Once the trier of fact has determined that the same group was involved, a second step or assessment is needed in order to determine if the evidence has enough probative value with regard to the individual accused to outweigh the prejudice it will cause.

32 Where evidence of similar offences committed by a gang is being introduced not just to identify the gang itself but to identify a particular member, a sufficient connection between the individual and the crimes of the group must be established. This can be done in two ways:

(1) If the Crown can prove that group membership never changed, that the gang always remained intact and never committed the criminal acts unless all were present, and that the accused was a member of the group, and present, at the relevant time, that will be sufficient to connect the individual to the crimes of the group, and the evidence will usually have sufficient probative value to be admitted as similar fact.

(2) Where membership in the group is not constant, as in this case, then an additional “link” or “connection” must be made in order to use evidence of group activity against a particular accused. This additional requirement will be satisfied where (a) the accused’s role was sufficiently distinctive that no other member of the group or person could have performed it; thus he necessarily must have participated in all offences; or (b) there is independent evidence linking the accused to each crime. Without this second stage of analysis, there is a risk that the net will be cast too broadly and members of a group who participated in some crimes will be improperly convicted of other crimes by virtue of their association with the group alone.

33 Group similar fact evidence can be used to identify groups, but not to assign liability to particular members. Identifying the group will facilitate prosecution where it can be shown that membership in the group was constant and the individual members can be identified. Identifying the group will not likely facilitate prosecution where membership in the group was not constant, unless the role played by a particular accused was sufficiently distinct that he can be identified as having been involved in all the offences.

34 Where, as in this appeal, membership in the group varied, and the roles played by a particular accused were not distinctive, similar fact evidence may only be introduced against this accused once he has been linked to each individual crime. By that point, the utility of the inference may have dissipated, but any other approach generates too much potential prejudice and invites wrongful convictions.

C. Application to the Case at Bar

35 The circumstances of this case can lead to erroneously relying on what might appear a compelling syllogism:

All the offences were carried out by X gang.

A was a member of X gang.

Therefore A was a party to all the offences.

This syllogism is incomplete. It would apply only if the Crown could prove that membership in the gang was permanent and that all members participated in all the home invasions charged.

36 There were many points of similarity offered by the Crown as evidence of similar fact in this case. Those included: proximity of time and place between offences; all incidents involved Asian and Caucasian men acting in concert; all attacks were against middle‑aged Asian women within their homes; all invasions occurred during the day; the modus operandi was the same in all cases (a postman carried a package to the door, the victim was overcome by postman and others, assailants tied residents with duct tape, used violence to subdue, and demanded money); all incidents involved the use of walkie talkies or police scanner radios.

37 The points of similarity identified by the Crown and described by the trial judge in his charge to the jury only point to how the offence was carried out and not to any individual characteristics particular to the appellant. The striking similarities demonstrate that it was likely the same group that committed the offences. However, membership in the group varied and, short of speculation, there is nothing in the similarities themselves that would allow a juror to infer that any one individual formed part of that group on more than one occasion.

38 The appellant’s alleged role in the offences also varied. As such, there was nothing distinctive about his alleged involvement that could be characterized as a signature or unique skill that could have assisted the jury in identifying him as a constant or necessary member of the group.

39 Aside from the testimony of the accomplice (Mr. Wang), the only evidence against the appellant was that related to the Fraserview incident, for which he had previously been convicted, the telephone calls to the accomplice and stolen property from the Osler Street incident found in an apartment he shared with two other alleged perpetrators of these crimes.

40 Given that membership in the gang rotated, the fact that the appellant was a member of the group on one occasion, for which he was convicted, was not sufficient to tie the appellant to all the crimes. An additional link between this particular appellant and the crimes of the group was required. However, since the role played by the appellant was not distinctive, and the independent evidence against the appellant was not sufficient to link him to each of the group’s crimes, there was no basis upon which this similar fact evidence should have been put to the jury for the purposes of identification.

41 By instructing the jury that the evidence admitted with respect to each of the three incidents could be used in proving the guilt of each accused on each of the offences, the trial judge failed to properly differentiate between the individuals before the court and the group who committed the offences. The similarities point only to the group, a group whose membership varied from incident to incident. However, the trial judge instructed the jury as follows:

It is for you to decide whether the characteristics of one incident are so similar to the characteristics of another incident that you are considering that they were likely committed by one person. If you find it likely that an accused was one of the persons who committed the offence of robbery and related offences in one incident, you may conclude, though you are not required to do so, that because of the pattern of similar behaviour he is the person who committed robbery and related offences in the other incident you are considering. [Emphasis added.]

42 Inviting the jury to conclude, based on the similar modus operandi employed by the group, that participation in one offence was indicative of participation in the others is inviting the jury to make decisions based on the prohibited inference. There is no logical or evidentiary basis upon which one could conclude that being a member of the group and participating in a crime on one occasion means that you have participated on other occasions. Instead, the inference that is made is that since the appellant participated in one crime and is a member of the group, he is likely the type of person who would participate in crimes on more than one occasion. This is a fragile line of reasoning and should be avoided.

43 Without the required connection between the appellant and each of the crimes, the similar fact evidence did not have sufficient probative value to outweigh the prejudice caused to this particular appellant. The trial judge erred in putting this evidence to the jury and in instructing them as he did.

VI. Disposition

44 For the Crown to employ propensity reasoning against an accused, there must be sufficient evidence that the accused was involved. To use evidence of one crime as proof of involvement in others is only appropriate where the similarities are so striking as to preclude coincidence. The similarities between the incidents demonstrate that it was likely the same group that committed the offences but do not point to any individual trademark or characteristic that can serve to identify the appellant. There was no evidentiary basis for a similar fact instruction in this case.

45 The appeal is allowed and a new trial ordered.

Appeal allowed and new trial ordered.

Solicitors for the appellant: Leask Bahen, Vancouver.

Solicitor for the respondent: Attorney General of British Columbia, Vancouver.