ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 113/12
DATE: 2013-02-05
B ETWEEN:
HER MAJESTY THE QUEEN
– and –
GORDON MICHAEL EDWARDS
E. O’Marra, for the Crown
H. Saini, for Gordon Michael Edwards
HEARD: December 11 and 12, 2012
REASONS FOR RULING
Crown Similar Act Applications
FITZPATRICK J.
[1] The Crown brings two similar act applications.
[2] The first application seeks to admit convictions and facts respecting commercial break and enters committed by Michael Gordon Edwards between January, 2007 and August, 2007. Mr. Edwards on November 5, 2008 plead guilty to 39 counts of break and enter with some related offences.
[3] The second application seeks to admit the evidence respecting each count as a whole and apply the whole of the evidence concerning each count on the Indictment (count to count).
[4] The accused, Gordon Michael Edwards (“Edwards”) is charged with 9 separate counts of break and enter with the 6 related counts of having his faced masked during some of the alleged offences. In addition, Edwards is charged with 1 count of possession of instruments suitable for the purpose of breaking into a place. The break and enters all occurred at commercial fast food outlets in the Halton Region between January 3, 2011 and March 28, 2011.
[5] It is agreed as fact in this application that the 9 break and enters did occur. The only live issue for both of these applications is identification of Edwards as the individual who committed these break and enters and whether Edwards was in possession of instruments suitable for the purpose of breaking into a place.
The Evidence
A. 2008 Convictions
[6] Pursuant to a plea agreement, Edwards on November 5, 2008 plead guilty to 39 counts of break and enter with some related offences.
[7] The facts read into the record in support of the 2008 guilty pleas material to this application are as follows:
i. The break and enters were all to commercial food/coffee premises in the Greater Toronto Area;
ii. The break and enters occurred in the night time and early morning hours;
iii. Edwards worked with a partner, Jason Phillips (“Phillips”);
iv. Edwards and Phillips initially used two cell phones and later walkie-talkie and Bluetooth technology to communicate during the offences;
v. Edwards and Phillips targeted money stored at each location;
vi. Entry at the locations was by neatly removing a pane of glass from a door occasionally utilizing a cardboard box to allow more protected glass removal and entry;
vii. Once inside the individual would glide along the floor to avoid initially triggering any motion alarms;
viii. The individual would wear gloves, dark clothing along with some hat, collared clothing or balaclava to avoid identification; and,
ix. There are 13 references to a safe located on the premises among the 39 break and enters plead to. Two of the safes are referenced as having either one hole or two holes cut into the safe for entry. There is no reference as to the shape of the holes for either break and enter.
B. 2011 Charges
[8] As stated above, Edwards is charged with 9 separate counts of break and enter with the 6 related counts of having his faced masked during some of the alleged offences and 1 count of possession of instruments suitable for the purpose of breaking into a place.
[9] The Crown tendered video surveillance and/or photographs for 6 (January 3rd, February 17th, March 7th, March 14th, March 21st and March 28th, 2011) of the 9 break and enters obtained from the owners of the respective premises. The videos vary but can generally be described as poorer in quality. The photographs are good quality.
[10] The January 3rd video shows the individual committing the break and enters walking around the back of the premises wearing a dark hooded sweater, gloves and a dark ski mask or balaclava. In addition to the video, the Crown tendered photographs for this occurrence showing an interior safe with a triangle shaped cut in the top of the safe. The photos also show the individual is wearing a knapsack style bag that is a combination of light and dark colours.
[11] The February 17th video shows the individual committing the break and enters entering the premises gliding on his stomach along the floor to the front counter wearing a dark hooded sweater, gloves and a dark ski mask or balaclava. The individual is wearing a rectangular shaped bag that is a dark colour with lighter badge in the middle of the bag. In addition to the video, the Crown tendered photographs for this occurrence showing an interior safe with a triangle shaped cut in the top of the safe.
[12] The Crown tendered photos for the March 7th occurrence showing an individual attending at the exterior of the premises wearing a dark hooded sweater, gloves and a dark ski mask. The individual is wearing a knapsack style bag that is a triangular in shape with dark colour and lighter trim around the exterior perimeter.
[13] The Crown tendered photos for the March 14th occurrence showing the exterior of the premises with the door glass pane missing, a cut mark on the inside safe similar to an upside down and backwards “F” and the cash box laying on the floor.
[14] The March 21st video shows the individual committing the break and enters entering the premises gliding on his stomach along the floor to the front counter wearing a dark hooded sweater, gloves and a dark ski mask or balaclava. The individual is wearing a knapsack style bag that is a triangular in shape with dark colour and lighter trim around the exterior perimeter. In addition to the video, the Crown tendered photographs for this occurrence showing an interior safe with a triangle shaped cut in the top of the safe.
[15] The March 28th video shows the individual committing the break and enters entering the premises crawling on his hands and knees along the floor to the front counter wearing a dark hooded sweater and gloves. The individual may also be wearing a face covering although the video is not definitive. The individual is wearing a knapsack style bag that is a triangular in shape although the colour cannot be confirmed from the video.
[16] There is no possible identification that can be made of the person in these videos and photographs.
[17] There is no dispute that the break and enters occurred in the night time and early morning hours.
[18] Entry at 6 of the 9 locations was facilitated by neatly removing a pane of glass from a door.
[19] Those surveillance videos and still photographs tendered in evidence that record an individual in the commission of the offence show the individual at each of the crime scenes wearing a bag with a strap. There are 3 different bags. One bag has a triangular shape, one a generic backpack shape and the third rectangular. Each bag appears to have some design markings (the triangular bag having lighter coloured piping in a triangular shape along the perimeter of the bag, the knapsack being 2 distinct colours and the rectangular bag having a lighter badge of some unspecified kind in the middle of the bag). The bags otherwise appear generic.
[20] The police seized two bags the Crown submits are relevant to this application. One bag was located in the bedroom Edwards shared with Clinton Smith. This bag was rectangular in shape with a silver coloured medallion stamped “Skyway” in the middle of the bag. The other bag was found in a storage locker located in another wing of the apartment building and contained tools inside, including a Makita angle grinder, Ryobi angle grinder, circular discs used for cutting steel, a pry bar, pliers/vice grips, a flashlight and ear protection headphones. This bag was triangular is shape with lighter coloured piping in a triangular shape along the perimeter of the bag.
[21] The police did not seize a knapsack style bag that is a combination of light and dark colours such as the one photographed in the January 3rd occurrence.
[22] The surveillance videos and still photographs do not show any tools being used during the commission of the break and enters. However, the individual in the videos/photographs removed or attempted to remove the glass from the door to the 6 premises and cut a triangular hole in the safe located at 3 of these locations and an upside down and backwards “F” at a 4th location. Clearly, a tool, likely power, was used to cut the holes in these safes.
[23] There was no direct evidence connecting tools from these crimes to Edwards.
[24] The police also seized two sets of 2 way radios. One set (without ear pieces) was found in a dresser drawer in the bedroom Edwards shared. Another set (with ear pieces) was found inside the triangular bag taken from the locker. There is no evidence whatsoever that a 2 way radio was used in any of these break and enters.
[25] The police seized clothing and a ski mask from the bedroom Edwards shared with Clinton Smith. The clothing consisted of a black winter jacket and a black hooded sweater. The ski mask did not match the one worn by the individual in any of the videos or the still photos.
[26] The Crown case at its highest is that Edwards had access to the bedroom and storage locker where the bags/tools were found along with Dorothy Smith, Clinton Smith and possibly others. The evidence is clear that Edwards shared the bedroom with Clinton Smith. There was no direct evidence that Edwards attended at the locker.
[27] The Crown called evidence that Edwards was a passenger in a vehicle that was stopped by police in Brantford, Ontario on February 11, 2011 at approximately 1:30 a.m. This was a significant distance from Edwards’ Toronto residence. In the course of this stop, the police noted there was a Ryobi angle grinder, a pry bar and 2 sets of 2 way radios with ear pieces located in the vehicle. There was no direct evidence connecting the tools to Edwards. Edwards was not charged with any offence arising out of this stop.
[28] In summary, the Crown has no direct evidence identifying Edwards as the individual who committed these break and enters and no direct evidence that Edwards was in possession of instruments suitable for the purpose of breaking into a place. The Crown evidence is entirely circumstantial.
The Analysis
[29] As stated above, the only live issue for this application is identification of Edwards as the individual who committed these offences. The two Crown applications seek to admit similar fact evidence for the purpose of identification.
[30] Major J. in R. v. Perrier [2004] 3 S.C.R. No. 228 reviewed the principles of admissibility of similar fact evidence for purposes of identification noting that:
“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 769 (SCC), [1998] 3 S.C.R. 339; R. v. B. (F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697; R. v. B. (C.R.), 1990 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 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.”
A. 2008 Convictions
[31] As set forth in R. v. Perrier, only where there is a high degree of similarity between the acts such that it renders the likelihood of coincidence objectively improbable can the similar acts be admitted. The Crown bears the burden of establishing this on a balance of probabilities.
[32] As set forth in R. v. Perrier, the similarity can be a unique signature or a number of significant similarities taken cumulatively such as to warrant admission of the evidence.
[33] I am not satisfied that the Crown has met its burden. More specifically, I am not satisfied that there is either a signature or significant similarities taken cumulatively sufficient to warrant admission of the evidence.
[34] As noted in R. v. Perrier, the Supreme Court of Canada in R. v. Handy [2002] 2 S.C.R. No. 908 suggested factors to assist in assessing the similarity between the acts such as proximity in time, similarity in details/circumstances and number of occurrences of the similar acts.
[35] The lack of proximity between the 2008 convictions and the 2011 allegations finds reasonable explanation in the fact of Edwards having been sentenced to approximately 3 years incarceration for the 2008 convictions.
[36] The number of occurrences of the similar acts is 39 break and enters as noted in the transcript for the 2008 convictions and 9 break and enters with related occurrences for the 2011 allegations.
[37] The similarities between the 2008 convictions and the 2011 allegations are as follows:
a. The 2008 convictions and the 2011 allegations were all to commercial food/coffee premises in the Greater Toronto Area;
b. The 2008 convictions and the 2011 allegations were break and enters committed in the night time and early morning hours;
c. The 2008 convictions and 5 of the 9 the 2011 allegations involved an individual who would wear gloves, dark clothing along with some head covering and/or balaclava to avoid identification;
d. All 39 break and enter counts for the 2008 convictions and 6 of the 9 2011 allegations involved an individual accessing the premises by neatly removing a pane of glass from a door.
e. In all of the 39 break and enter counts for the 2008 convictions the individual would glide along the floor to avoid initially triggering any motion alarms. In 2 of the 9 2011 allegations involved an individual glides along the floor on his stomach to avoid initially triggering any motion alarms. On 1 of the 9 2011 allegations involved an individual crawls on hands and knees along the floor to avoid initially triggering any motion alarms.
f. In 2 of the 39 2008 convictions a hole (or two holes) of no particular shape or description was cut in the safe at the premises. There are a total of 13 references to a safe being at the premises for the 2008 convictions. In 3 of the 9 2011 occurrences the perpetrator cut a triangle shaped hole in the top of an interior safe. In 1 of the 9 2011 occurrences the perpetrator made an upside down and backwards “F” cut to an interior safe. I note these as similarities simply for the cut in the safe made at each.
[38] The dissimilarities between the 2008 convictions and the 2011 allegations are as follows:
a. All 39 break and enter counts for the 2008 convictions involved 2 individuals working in partnership. All of the 2011 allegations involve one person acting alone.
b. The 2 offenders in the 39 2008 convictions used two cell phones and later walkie-talkie and Bluetooth technology to communicate during the offences. There is no suggestion that cell phones, walkie-talkie and/or Bluetooth technology was used in the 2011 occurrences.
c. In none of the 39 2008 convictions does the perpetrator cut a triangle shaped hole in the safe.
[39] In my view there is nothing significant about the break and enters targeting commercial fast food/coffee premises, late at night or in the early morning and by a perpetrator wearing dark clothing, a face covering and gloves to avoid identification. It seems almost a matter of common sense that break and enters would be committed in the late evening/early morning hours when nobody would likely be there and the perpetrator would benefit from the cover of darkness, which would be complimented by the dark clothing that also seems a matter a common sense for break and enters at night.
[40] I am also not persuaded that there is sufficient significance in the similarity of the perpetrator initially entering the premises by gliding along the floor. While this is common to all 39 of the 2008 convictions there are only 2 occurrences of the 9 2011 allegations where an individual glides along the floor on his stomach to avoid initially triggering any motion alarms. As stated above, on 1 of the 9 2011 allegations involved an individual crawls on hands and knees along the floor to avoid initially triggering any motion alarms. The majority of the 2011 occurrences do not have this gliding along the floor as part of the narrative.
[41] I am also not persuaded that there is sufficient significance in the similarity of the holes cut in the safe. There are a total of 13 references to a safe being at the premises for the 2008 convictions with 2 of those referencing a non-descript hole cut in the safe. In 3 of the 9 2011 occurrences there is a very specific cut to the safe, namely a triangle hole cut in the top of the safe. In one other of the 2011 occurrences there is an upside down and backwards “F” cut to the safe. The similarity is marginal (ie. the most that can be said is a similarity in there being a hole cut in a safe for 2 of the 2008 convictions and 3 of the 2001 occurrences). It is more significant that none of the 39 2008 convictions involves the perpetrator cutting a triangle shaped hole in the safe.
[42] In conclusion, on a balance of probabilities I am not persuaded that there is a high degree of similarity between the acts such that it renders the likelihood of coincidence objectively improbable warranting the admission of the similar fact evidence. I do not see anything here qualifying as a unique signature. The similarities cumulatively are not of a high degree. I am not persuaded that the 2011 charges and the similar acts were likely committed by the same person.
[43] For completeness, I do note that there is no dispute that Edwards is linked to the 2008 convictions given his guilty plea. As such, this precondition to admission is met.
[44] Given my finding at paragraph 42. that the test for admissibility had not been met, it is not necessary for me to weigh the probative value of the similar acts versus prejudicial effect. However, I would comment that there is obvious and, in my view, significant prejudice associated with admitting as evidence the 39 prior convictions where the issue is identification.
B. 2011 Charges
[45] The analysis set forth above in set forth in R. v. Perrier applies to applications seeking to admit the evidence respecting each count as a whole and apply the whole of the evidence concerning each of the counts (count to count similar fact).
[46] I am not satisfied that the Crown has met its burden for the 2011 count to count similar fact application. More specifically, I am not satisfied that there is either a signature or significant similarities taken cumulatively sufficient to warrant admission of the evidence.
[47] To avoid unnecessary repetition, I will rely on my description of the 2011 occurrences set forth above.
[48] I again reference the factors suggested in R. v. Handy [2002] 2 S.C.R. No. 908 to assist in assessing the similarity between the acts such as proximity in time, similarity in details/circumstances and number of occurrences of the similar acts.
[49] The proximity in time is very close with all offences occurring between January 3, 2011 and March 28, 2011 both inclusive.
[50] The number of occurrences is 9 break and enters with related charges over the period between January 3, 2011 and March 28, 2011.
[51] The similarities and dissimilarities between the 9 break and enters with related charges in 2011 are as follows:
a. The 2011 allegations were all to commercial food/coffee premises in the Region of Halton;
b. The 2011 allegations were break and enters committed in the night time and early morning hours;
c. 5 of the 9 the 2011 allegations involved an individual who would wear gloves, dark clothing, including a hooded sweater for head covering and/or balaclava to avoid identification;
d. 6 of the 9 2011 allegations involved an individual accessing the premises by neatly removing a pane of glass from a door.
e. In 2 of the 9 2011 allegations involved an individual glides along the floor on his stomach to avoid initially triggering any motion alarms. On 1 of the 9 2011 allegations involved an individual crawls on hands and knees along the floor to avoid initially triggering any motion alarms.
f. In 3 of the 9 2011 occurrences the perpetrator cut a triangle shaped hole in the top of an interior safe. In 1 of the 9 2011 occurrences the perpetrator made an upside down and backwards “F” cut to an interior safe.
[52] As stated above in my analysis of the other similar act application, there is nothing significant about the break and enters targeting commercial fast food/coffee premises, late at night or in the early morning and by a perpetrator wearing dark clothing, a face covering and gloves to avoid identification. It seems a matter of common sense that break and enters would be committed in the late evening/early morning hours when nobody would likely be there and the perpetrator would benefit from the cover of darkness, which would be complimented by the dark clothing that also seems a matter a common sense for break and enters at night.
[53] Again as stated above, I am not persuaded that there is sufficient significance in the similarity of the perpetrator initially entering the premises by gliding along the floor. There are only 2 occurrences of the 9 2011 allegations where an individual glides along the floor on his stomach to avoid initially triggering any motion alarms. For 1 of the 9 2011 allegations involved an individual crawls on hands and knees along the floor to avoid initially triggering any motion alarms. The majority of the 2011 occurrences do not have this gliding along the floor as part of the narrative.
[54] Again, I am not persuaded that there is sufficient significance in the similarity of the holes cut in the safe. In 3 of the 9 2011 occurrences there is a very specific cut to the safe, namely a triangle hole cut in the top of the safe. In one other of the 2011 occurrences there is an upside down and backwards “F” cut to the safe. There is an unlocked safe for 1 of the 9 2011 occurrences, no safe in 2 others and no mention of a safe in the other 2 occurrences for 2011. The fact remains that he majority (ie. 6 of 9) of the 2011 occurrences do not have this triangle cut in the safe as part of the narrative.
[55] In conclusion, on a balance of probabilities I am not persuaded that there is a high degree of similarity between the 2011 acts such that it renders the likelihood of coincidence objectively improbable warranting the admission of the similar fact evidence. I do not see anything here qualifying as a unique signature. The closest the Crown comes in that regard is that at 3 of the 9 occurrences a triangular hole was cut into a safe. The similarities cumulatively are not of a high degree. I am not per