ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-10425
DATE: 2012-03-07
BETWEEN:
HER MAJESTY THE QUEEN Applicant – and – MYLES GREGORY FAWCETT Respondent
Matthew Geigen-Miller, for the Crown
Paolo Giancaterino, for the Respondent
HEARD: February 28 and 29, 2012 at Ottawa, Ontario
Madam Justice B. R. Warkentin
Reasons on Application
[ 1 ] This is an Application by the Crown seeking an order that similar fact evidence may be admitted; particularly that evidence of each count is admissible on each other count in the indictment on the issue of identity.
[ 2 ] This type of Application (Similar Fact Evidence Application) may be brought by the Crown at the end of the Crown’s case. Except for two witnesses whose evidence depended on my ruling on this Application, the Crown’s case was complete when this Application was brought.
[ 3 ] The Respondent submitted that the Application should be dismissed on the grounds that the evidence does not disclose a high degree of similarity between the acts, which renders the likelihood of coincidence objectively improbable.
[ 4 ] The Respondent also submitted that the Application should be dismissed because the Court cannot be satisfied on a balance of probabilities that the probative value of the evidence outweighs its prejudicial effect.
[ 5 ] After considering the submissions of the parties, I granted the Crown's Application with these written reasons to follow.
Evidence of Similar Acts
[ 6 ] Between the period of January 15 and January 26, 2010, three banks in the Ottawa area were robbed. The banks were all located within one kilometre of each other along a stretch of Bank Street in Ottawa.
[ 7 ] The indictment contains three charges against the Respondent, Myles Fawcett; one charge for each of the three robberies.
[ 8 ] It is the Crown’s position that the same person committed each offence and that the person was the Respondent.
Incident of January 15, 2010
[ 9 ] The first robbery took place on January 15, 2010 at the Scotia Bank on Alta Vista Drive near Bank Street, in Ottawa. The robber was wearing a baseball cap, gloves and a large overcoat. He entered the bank and waited near the front doors of the bank away from the customer line. When beckoned by a female teller he approached that teller and handed her a handwritten note on a portion of a lined piece of notepaper.
[ 10 ] The text of the note according the teller’s evidence said:
"1. don’t make a scene"
"2. no ink", and
"3. (contained a demand for money, however, the exact wording of this line is unknown because the teller testified that she did not need to read the note further to know that she was being robbed.)"
[ 11 ] The robber spoke and told the teller “no ink”. He then demanded the note be returned to him, which it was.
[ 12 ] There was video surveillance of the robber from the bank’s surveillance cameras. The amount of time that the robber was before the teller was less than 30 seconds.
Incident of January 21, 2010
[ 13 ] The robbery on January 21, 2010 occurred at the Bank of Montreal at 1556 Bank Street in Ottawa.
[ 14 ] The robber entered the bank wearing gloves, a toque-like hat with a brim and a large overcoat. The robber waited in the commercial customer line until beckoned by a female teller. He approached the teller and provided her with a handwritten note written on a white piece of paper on which, according to the teller's evidence was written:
“No Ink"
"Don’t tell anyone" and
"Give me money.”
[ 15 ] The robber spoke to the teller and said “no ink” and demanded that the note be returned to him.
[ 16 ] The teller gave him cash from her cash drawer and the robber left the bank. The bank's surveillance cameras captured images of the robber. The amount of time the robber was in the bank was approximately 39 seconds.
Incident of January 26, 2010
[ 17 ] This bank robbery occurred at the TD Canada Trust bank at 1582 Bank Street in Ottawa. The robber was wearing a large overcoat, gloves and a baseball cap. He entered the bank and waited near the front doors away from the customer line.
[ 18 ] A male teller noticed an individual waiting and beckoned the person to a wicket near the entrance to the bank. This was not the wicket at which that teller had been working.
[ 19 ] In response to the teller’s inquiry the individual said “yes maybe you can help me” and then handed a handwritten note to the teller. The note was written on a portion of a lined piece of notepaper. The text of the note stated:
“money now "
"no ink bombs"
"no alarms"
"don’t make a scene”.
[ 20 ] The teller then left the wicket to get money from a cash dispenser. The robber asked the teller where he was going and asked for the note to be returned to him, which it was.
[ 21 ] The teller obtained cash with marked bills and a dye pack from the cash dispenser. He then returned to his wicket and provided the money with the dye pack to the robber. The robber accepted the money and left the bank.
[ 22 ] The bank's surveillance cameras recorded the robbery. The recording included about 4 minutes, part of which was of the robber standing outside the branch. The teller only saw the robber's face briefly before leaving his wicket to obtain the cash and dye pack from the cash dispenser.
[ 23 ] The dye pack exploded outside the branch. The dye pack, a ball cap and a jacket were subsequently located and seized by police. These items have all been linked to the robber. The note the robber had provided to the teller was found in the pocket of the jacket.
Similarities
[ 24 ] All three robberies were recorded by the individual bank’s video surveillance cameras. The video images show the robber from many different angles. There is a striking similarity between the robbers' dress, demeanour and facial characteristics in the three bank robberies.
[ 25 ] The physical characteristics show a person with similar features, in particular the jaw line, sideburns, lips, ears, demeanour and height. However, in each of the three instances the robber wore a different overcoat and a different hat.
[ 26 ] The tellers who testified at the trial all provided somewhat different descriptions of the bank robber's specific facial features, his tone of voice and hair colour. They did agree that he was a white male without an accent, who did not raise his voice, make a scene or threaten them.
[ 27 ] In each instance the teller only saw the robber for approximately thirty seconds, during which time the robber handed the teller the handwritten note and the teller responded with providing cash to the bank robber after which the bank robber left the bank. The notes handed to the teller in the robberies were similar and used the words "no ink" and "no ink bombs". The evidence showed that these words are unique to robbery notes.
[ 28 ] In addition to the similarities described above, in each instance no weapon was used in the commission of the bank robbery. The notes did not overtly threaten the tellers, nor did they instruct the tellers not to contact the police.
[ 29 ] The DNA of Mr. Fawcett was found on both the jacket and the baseball hat that were seized by police in the parking lot outside the TD Canada Trust after the third robbery.
The Law
[ 30 ] The law regarding the similar fact evidence rule is as follows:
Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception. [1]
[ 31 ] Where evidence of similar acts is offered to help prove the identity of the person responsible for a crime, a high degree of similarity between the tendered acts and the offence charged is required to render the likelihood of coincidence objectively improbable and to justify the reception of the evidence. [2]
[ 32 ] In assessing evidence of similar acts there is a two stage test that must be followed.
[ 33 ] First, I must assess the degree of similarity demonstrated by the manner in which the acts in question were committed to determine whether it is likely the same person who committed the alleged similar acts. [3]
[ 34 ] That similarity may consist of a unique trademark or a series of significant similarities.
[ 35 ] If I have determined that the crimes charged and the similar acts were likely committed by the same person, the second stage of the test requires that, I must then determine whether or not there is some evidence linking the accused to the similar act.
[ 36 ] In this case, counsel for the defence has conceded that the second part of the analysis, being whether there is evidence linking the accused to the similar act, had been met by virtue of two portions of the evidence. The first being that the DNA found on the jacket matches the DNA of Mr. Fawcett.
[ 37 ] Counsel for the defence also confirmed that the anticipated evidence of Sergeant Simser, one of the two remaining witnesses, would be that Sergeant Simser would identify Mr. Fawcett from the video surveillance images of all three banks. Sergeant Simser had provided this evidence in the preliminary hearing and counsel for the defence had already had one opportunity to test this evidence prior to this voir dire .
[ 38 ] On that basis counsel for the defence conceded that these two pieces of evidence satisfied the linkage analysis. Therefore, the only part of the test I must consider is whether or not the acts in question were of a sufficiently high degree of similarity to support a conclusion that the same person likely committed all three bank robberies.
[ 39 ] If I find that the evidence does support such a finding, I must then determine whether or not the probative value of that evidence outweighs its prejudicial effect.
Degree of Similarity
[ 40 ] In order to gain entry as evidence of similar acts, whether or not similar acts alleged involved intrinsic misconduct, or as in this case conduct that is the subject of other counts on the same indictment, the evidence of the similar acts must be appropriately connected to the facts alleged in an individual count. Similarities in character, proximity, in time and in frequency of occurrence are important factors. [4]
[ 41 ] In this case the bank robberies took place over an interval of eleven days. The three robberies were located within one kilometre of each other in the City of Ottawa. The banks robbed were the only three banks in that area.
[ 42 ] In each robbery, the robber waited until beckoned by a teller to approach and in each case a handwritten note with similar demands was handed to the teller, which the robber then demanded back. The robber spoke quietly and did not seem agitated although one of the teller's described him as seeming nervous.
[ 43 ] The physical descriptions of the robber by the three tellers, notwithstanding their very short interaction with the robber, contained numerous similarities with only minor variances. The video surveillance from each of the three banks showed an individual who is strikingly similar in each instance.
[ 44 ] Based upon the similarities in the three robberies, which I found to be strikingly similar, I found that there was a sufficient accumulation of significant similarities to satisfy the threshold for admissibility. In other words, the significant similarities among the three robberies were sufficient to establish the objective improbability of coincidence. The dissimilarities that existed among the three robberies were neither so numerous nor substantial as to dilute the probative value of the acts alleged to be similar.
Probative Value vs. Prejudicial Effect
[ 45 ] With respect to the issue of the potential prejudicial effect of permitting the evidence of similar acts, I must consider both moral and reasoning prejudice.
[ 46 ] Moral prejudice is the risk of convicting the Respondent because he is a “bad person” rather than based on proof that he committed these offences. Reasoning prejudice is the risk of distracting or confusing the jury or of consuming an undue amount of time.
[ 47 ] Another form of moral prejudice occurs when the alleged similar acts are more reprehensible than the counts charged in the indictment. If the alleged similar acts are of equal severity or are less reprehensible than the counts in the indictment, the moral prejudice is significantly reduced.
[ 48 ] In this case the concern for moral prejudice is almost completely negated because the jury has already heard the evidence of each of the three acts alleged to be the similar acts. The three robberies are contained as separate counts on the indictment therefore the risk of the jury casting the Respondent in a poor light would not be eliminated by excluding the similar act evidence. Likewise, because the similar acts relate to an equal charge on the indictment they are of equal severity.
[ 49 ] I find that the potential for moral prejudice is minimal and does not outweigh the probative value of permitting the evidence of the similar acts.
[ 50 ] The risk of reasoning prejudice is also minimal. Again, the evidence of the similar facts is already before the jury and already forms part of the case the Crown must meet. There is little risk that the jury would be distracted or consume undue time. Any risk can be addressed in an appropriate charge dealing with the manner in which the jury is to use the evidence of similar acts.
[ 51 ] The dissimilarities among the three incidents were neither of such number or significance as to diminish the probative value of the evidence. The probative value significantly outweighs the prejudicial effect. Therefore I find that the circumstances in which each offence was committed were sufficiently similar such that the evidence on all counts can be taken into account in determining whether guilt has been proven on any individual count.
[ 52 ] The Crown’s Application is therefore granted.
Madam Justice B. R. Warkentin
Released: March 7, 2012
COURT FILE NO.: 10-10425
DATE: 2012-03-07
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Applicant – and – MYLES GREGORY FAWCETT Respondent REASONS ON APPLICATION Warkentin J.
Released: March 7, 2012
[1] R. v. Handy (2002) 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.) at para. 55
[2] R. v. Arp (1998), 129 C.C.C. (3d) 321 at 353 (S.C.C.) at para. 43
[3] R. v. Arp, supra, at para. 48
[4] R. v. MacCormack (2009) 2009 ONCA 72, 241 C.C.C. (3d) 516 at para. 62