COURT FILE NO.: CR-53/21
DATE: 2022 01 19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Mr. M.
Mr. M. Godinho, for the Crown
Mr. E. Willschick for Mr. M.
HEARD: January 17, 2022
REASONS FOR DECISION - DEFENCE ABUSE OF PROCESS APPLICATION AND CROWN SIMILAR FACT EVIDENCE APPLICATION
CONLAN J.
I. Introduction
The Charges
[1] Mr. M. and another person stand jointly charged, in a direct indictment preferred with the consent of Ontario’s Deputy Attorney General dated June 30, 2021, with seven counts under sections 348(1)(b), 344(1)(a.1), 279(2), 348(1), 351(2), and 266 of the Criminal Code. The charges involve alleged home invasion robberies committed in Oakville and Scarborough in late 2019 and early 2020. These seven counts are currently before the Superior Court of Justice in Halton, Ontario, with a jury trial scheduled to take place in September 2022.
[2] Mr. M. is also facing charges that are not currently before this Court but which are the subject of the within decision. Those charges are contained in a Toronto Police Service Information laid against Mr. M. and six other accused persons, alleging offences committed in January 2020 under sections 279(2), 346(1), 279(1)(c), 465(1)(c), 348(1)(b), 266, 246(b), 246(a), 85(1)(a), and 351(2), among others, of the Criminal Code. On that Information, Mr. M. is implicated in ten counts. The defence anticipates that those counts will not be tried in the Superior Court of Justice in Toronto until late 2023 or even in 2024.
The Situation that Existed Prior to the Filing of the Direct Indictment
[3] The direct indictment referred to above contains charges that emanate from Toronto, specifically Scarborough. Before the filing of the direct indictment, those charges were set to be tried in the Ontario Court of Justice, via Zoom, in July 2021. The filing of the direct indictment had the effect of vacating that trial. That trial was to be based almost entirely on an agreed statement of facts.
This Court’s Zoom Hearing on January 17, 2022
[4] On January 17, 2022, via Zoom, this Court heard two pretrial applications. The applications were argued in less than one-half day and were based entirely on a written record and brief oral submissions by counsel. No viva voce evidence was adduced.
The Defence Abuse of Process Application
[5] In an application dated September 30, 2021, the defence requests a stay of proceedings under section 24(1) of the Charter, submitting that the direct indictment is an abuse of process that has violated Mr. M.’s section 7 Charter right.
[6] The Crown opposes that application.
The Crown Similar Fact Evidence Application
[7] In an application dated December 16, 2021, the Crown requests an order (i) admitting similar fact evidence across the counts contained in the direct indictment, and (ii) admitting similar fact evidence extrinsic to the direct indictment, namely, the subject matter of the Toronto Police Service Information referred to above.
[8] The defence opposes that application.
II. Analysis of the Defence Abuse of Process Application
A More Fulsome Understanding of the Position of the Applicant
[9] It is the position of the defence that the Crown is “indivisible”. The Crown with carriage of the Scarborough charges decided not to bring a similar fact application, and it was not for the Crown in Halton to second-guess that decision and bring a halt to the simple and efficient Ontario Court of Justice trial that was to take place in July 2021 by filing the direct indictment and dragging Mr. M. into Superior Court in Halton, the defence submits.
[10] According to the defence, that the Crown appears to acknowledge in its own factum that it was worried about Mr. M. being acquitted on the Scarborough charges, which would mean that the subject matter of those charges could not be used in the prosecution in Halton, only serves to illustrate the abusive, vexatious, and prejudicial conduct of the Crown in filing the direct indictment.
[11] The state conduct here, argues the defence, is offensive and harmful to the integrity of the justice system. There has been a breach of Mr. M.’s section 7 Charter right, and there is no other available remedy except for a stay of proceedings under section 24(1). In fact, in response to any suggestion by the Crown that the accused’s complaints about delay should more properly be addressed under section 11(b) of the Charter, it is submitted by counsel for the accused that the filing of the direct indictment has also had the effect of buying the Crown more time because the ceiling for delay is higher in the Superior Court of Justice than it would have been in the Ontario Court of Justice, where the Scarborough charges were scheduled to be tried.
The Legal Principles
[12] I adopt the following from the factum filed by the defence at paragraphs 28 and 29, which summary of the law is acknowledged by the Crown, in its own factum, as being correct.
The decision to file a direct indictment is a function of prosecutorial discretion: Anderson, 2014 SCC 41, at paras. 44, 51. Prosecutorial discretion is subject to the highest level of deference from the courts: Krieger v. Law Society of Alberta, 2002 SCC 65. As a matter of prosecutorial discretion, the decision to file a direct indictment is only reviewable if there is an abuse of process: Anderson, 2014 SCC 41, at paras. 44, 51; S.J.L., 2009 SCC 14, at para. 24.
In S.J.L., 2009 SCC 14, Deschamps J., writing for the majority of the Supreme Court of Canada, stated (at para. 37) that “[t]he provides needed flexibility in [. . .] the criminal justice system,” and listed various reasons that have been cited in support of the direct indictment (at paras. 38-39):
At this point, I should mention some of the reasons generally cited in support of the direct indictment by commentators (see Law Reform Commission of Canada, Working Paper 62, Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor (1990), at pp. 91-92; B. MacFarlane and J. Webster, “Preferred Indictments”, in V. M. Del Buono, ed., Criminal Procedure in Canada (1982), 319, at pp. 323-24), and in the administrative guidelines of the federal Crown and the public prosecution services of various provinces:
delays in the trial could deprive the accused of the right to be tried within a reasonable time;
the physical or psychological health of witnesses, their age, their safety or that of their relatives, and the difficulties involved in having witnesses testify more than once;
preservation of the integrity of the Crown’s evidence by, for example, protecting informants and ongoing police investigations;
a risk that evidence could be destroyed;
public safety reasons;
the need to avoid multiple proceedings caused, for example, by delays in making arrests;
the accused was wrongly discharged following the preliminary inquiry because of errors, or new evidence has been discovered;
a preliminary inquiry would be unreasonably costly, complex or long, or would be inappropriate because of the nature of the issues
or the evidence;
the alleged offence is so controversial that it is in the public interest to try the case as quickly as possible; and
certain guidelines set out additional, broader criteria, such as the need to maintain public confidence in the administration of justice, the public interest, or the fact that the case is notorious or of particular importance to the public, that the direct indictment is the most appropriate procedure in the circumstances, or that there is a special need to expedite proceedings.
Although some of the reasons, particularly those that are vaguely worded or based on the public importance of the case, may not be directly relevant to a given accused, maintaining the direct indictment nevertheless appears to be legitimate.
The Legal Principles Applied
[13] In my view, despite the able arguments made by Mr. Willschick on behalf of Mr. M., it has not been established on a balance of probabilities that the filing of the direct indictment in this case amounts to an abuse of process.
[14] First, delays in the trial is a neutral factor in our case. It cuts both ways. On the one hand, the July 2021 Ontario Court of Justice trial on the Scarborough charges never took place, and as of September 2022 some fourteen months will have passed before the resolution of those charges in the Superior Court of Justice in Halton. That is unfortunate. And that could spur an 11(b) application by the defence [remember that there is no prohibition against the granting of an 11(b) Charter remedy in circumstances where the delay falls below the ceiling established by the Supreme Court of Canada]. On the other hand, the filing of the direct indictment has unquestionably hastened the trial of the Oakville charges.
[15] Second, the impact on witnesses is also a neutral factor. The Scarborough witnesses will now likely have to testify at trial, though the agreed statement of facts was designed to avoid that for the Ontario Court of Justice trial that was scheduled to occur in July 2021. The Oakville witnesses, however, which include vulnerable children, will now not have to endure a preliminary inquiry.
[16] Third, and this is important, I accept that the filing of the direct indictment was a bona fide effort by the Crown to protect and preserve the overall integrity of the evidence, and to avoid multiple proceedings (the sixth factor discussed in S.J.L., supra), and to maintain public confidence in the administration of justice (the tenth factor discussed in S.J.L., supra). The third, sixth, and tenth factors are all related on the facts presented here.
[17] I understand what Mr. Willschick means when he says that the Crown is “indivisible”. That does not mean, however, that the Halton Crown was required to not pursue a similar fact evidence application between the Scarborough and the Oakville charges simply because the Scarborough Crown had elected not to do so for the Ontario Court of Justice trial scheduled to take place in July 2021.
[18] I also understand what Mr. Willschick is alluding to when he says that there is something unseemly (my word) about the Crown saying that an acquittal for Mr. M. at the Ontario Court of Justice trial in July 2021 would have deprived the Crown of the opportunity to rely upon the Scarborough subject matter in its Halton prosecution, thus buttressing the need to file the direct indictment. But the other side of that coin is that Mr. M. could very well have been convicted in July 2021, which arguably could have placed him in an even worse evidentiary position in the Halton prosecution as compared to facing a similar fact application where the Scarborough allegations remain just that – unproven allegations.
[19] In my opinion, it made sense, in the circumstances, and with a view to maintaining public confidence in the administration of the criminal justice system overall, for the Crown to have Mr. M. tried on everything at once, Scarborough and Oakville, and to pursue an across-the-counts similar fact evidence application in the context of one (not multiple) prosecution(s).
[20] The remaining factors enumerated in S.J.L., supra are not relevant here, in my view.
[21] In the end, looking at the test that both sides agree on, I am not satisfied that the conduct of the Crown in filing the direct indictment is offensive, and/or that it compromises trial fairness for Mr. M., and/or that it undermines the integrity of the justice system, such that this Court must dissociate itself from it. There has been no abuse of process or violation of Mr. M.’s section 7 Charter right, and there will be no stay of proceedings ordered. R. v. Babos, 2014 SCC 16, at paragraphs 30-31.
III. Analysis of the Crown Similar Fact Evidence Application
The Legal Principles
[22] In R. v. H.A., 2019 ONSC 3932, a case involving multiple robberies and a Crown similar fact evidence application based on group participation in the offences and linkage evidence to the accused specifically, I had occasion to summarize the law of similar fact evidence, (i) generally, (ii) on the issue of identity in particular (which is the issue in the case of Mr. M.), and (iii) on the issue of identity in the context of group activity (which, again, is the issue in the case of Mr. M.). Set out below are paragraphs 115 through 123 of that decision, borrowing heavily from the judgment of Justice Fairburn (as the Associate Chief Justice of Ontario then was) in R. v. Kanagasivam, 2016 ONSC 2548.
[115] In R. v. Durant, 2019 ONCA 74, [2019] O.J. No. 556, very recently decided by the Court of Appeal for Ontario, which was a case where the accused had been charged with two counts of first degree murder and the Crown was successful at trial in having the evidence applied across the two counts, the Court reminded us of the basic legal principles that are germane to this Court’s decision.
[116] Those principles include the following:
-evidence of similar acts is a kind of bad character evidence (paragraph 80);
-evidence of similar acts, even across counts, is presumptively inadmissible because its probative value is often slight and overwhelmed by its more potent prejudicial effect (paragraphs 81-82);
-the onus to rebut the presumption against the admissibility of similar act evidence rests with its proponent, the Crown, on a balance of probabilities (paragraph 97);
-the Crown must demonstrate a sufficient similarity in the manner in which each offence was committed to render coincidence improbable (paragraph 98);
-where the relevant issue is identity, the degree of similarity required between the acts is often described as “striking” – “strikingly similar acts” (paragraph 98);
-the similarity between the acts must be so unique that, viewed objectively and with common sense, it cannot be explained on the basis of mere coincidence (paragraph 99); and
-in assessing the similarity between the acts, the trial judge should consider only the manner in which they were committed and not evidence linking the accused to those acts, although there is no bright line between those two things in that there are times when the accused’s tie to the acts is inextricably woven with the circumstances of the conduct (the acts) itself (paragraphs 101-102).
[117] Although already alluded to above, it is worth repeating the test for the admission of similar act evidence where the issue that the evidence goes to is the identity of the person who committed the crime.
[118] In that regard, set out below are paragraphs 50 through 53 of the Court of Appeal for Ontario’s decision in R. v. MacCormack, 2009 ONCA 72, [2009] O.J. No. 302, which, interestingly, was a case not unlike ours in many respects.
[50] 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: Arp at para. 43.
[51] In some cases in which evidence of similar acts is offered to help establish the identity of the person responsible for a crime, the evidence will reveal a unique trademark or signature common to all incidents. Such a striking similarity sponsors admission. But, a signature is not required in every case. A number of significant similarities in combination may, by their cumulative effect, warrant admission: Arp at para. 45; Handy at para. 81.
[52] The admissibility inquiry begins with a focus on the acts themselves. Do the acts have the high degree of similarity required to justify their reception? As similarity increases, so does probative value: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 21. This phase of the inquiry into admissibility may be characterized as the “similarity” issue.
[53] The similarity inquiry is a case-specific, highly individualized examination involving a consideration of all relevant factors including, but not limited to:
i. proximity in time and place;
ii. similarity in detail and circumstances;
iii. number of occurrences;
iv. any distinctive feature(s) unifying the various incidents;
v. intervening events; and
vi. any other factor that tends to support or rebut the underlying unity of the similar acts.
Handy at para. 82; Perrier at para. 22.
[119] In cases involving a group or gang that is alleged to have committed multiple offences, all similar in nature, and the issue to be decided is whether the accused was the, or one of the, culprits involved in one or more of those crimes, the circumstances are such that legal error on the part of the gatekeeper, the trial judge, is tempting.
[120] The Supreme Court of Canada, in R. v. Perrier, [2004] 3 S.C.J. No. 54, put it this way, at paragraph 35 of its decision.
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.
[121] Thus, the Supreme Court of Canada provided this direction to trial judges, at paragraphs 32-34 of its decision.
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.
[122] In paragraph 32(2)(b) of its decision, what does the Supreme Court of Canada mean when it says “independent evidence linking the accused to each crime”?
[123] Here, I slavishly adopt the very helpful and thorough analysis undertaken by Justice Fairburn, then of the Superior Court of Justice, at paragraphs 43 through 72 of Her Honour’s decision in R. v. Kanagasivam, 2016 ONSC 2548, [2016] O.J. No. 4568 (the reader is encouraged, in particular, to focus on paragraph 72, quoted below, although the entire analysis on this question is set out).
[43] While similar fact evidence of group activities may be admissible to identify a group responsible for crimes, it can only be used to identify an individual acting within the group when that individual can be specifically linked to the conduct in question. As noted in Perrier, just because an accused acts with a group on one occasion, does not mean he acts with the group on another occasion. As such, finding evidence that links the accused to the similar acts is “particularly important” in the group context: Perrier, at para. 25.
[44] Links to individuals acting within groups can be made in a few different ways. In circumstances where the constitution of the group remains static, and the group does not act without all members present and participating, then the signature of the group can become the signature of the accused: Perrier, at para. 25.
[45] In a rotating group environment, there is a risk that simply by virtue of membership in the group, the accused will become implicated in crimes he did not commit. To assuage this concern, Perrier instructs that a specific evidentiary connection must be drawn between the accused and the similar acts of the group. This link can be made in one of two ways: (a) through evidence that the accused played a distinctive role in the crimes; or (b) by “other independent evidence”: Perrier, at para. 25.
[46] There is no suggestion in Perrier, and there is no suggestion in this case, that any of the accused played distinctive roles. As such, for purposes of this case, the link between the accused and the group’s similar acts must be made through independent evidence. While the term “independent evidence” is not defined within Perrier, I take this to mean evidence of something other than simply membership in the group. After all, if simple membership in the group could be considered independent evidence linking the individual to the group’s crimes, then the matter would become circular, as the similar crimes would then become admissible on the basis of group membership. Such an approach would be antithetical to the very danger that Perrier points toward, allowing simple membership in a group to become a gateway for the admission of group similar fact evidence to establish the identity of an individual.
[47] The question is how much independent evidence linking an accused to a group act is required as a prerequisite to admissibility in a rotating group environment? As above, the defence argue that the evidence must verge on conclusively establishing the accused’s guilt in respect to an act before it will support admission. For the reasons that follow, I find that the some evidence threshold from Sweitzer, and adopted in Arp, is the correct test for admissibility.
[48] I start with the observation that there is nothing in Perrier that explicitly suggests a higher threshold test for linking an accused to the similar acts in a rotating group context. Indeed, in discussing the need for linkage evidence, Major J. specifically adverts to and, in fact, quotes fromSweitzer. He sets out the passage containing the requirement for “some evidence” of linkage as a prerequisite to admissibility and the threshold is referred to as a “not particularly high” one: Perrier, at paras. 23-24.
[49] Notably absent from the court’s discussion of linkage evidence is any suggestion that the Sweitzer threshold falls short of the task at hand in the group context. The court’s silence on the issue speaks loudly. If the court had intended to impose a more robust test, particularly after reviewing the “some evidence” threshold from Sweitzer, the court would have explicitly done so.
[50] As well, I see no compelling rationale for why a higher linkage test should be imposed in this context. Perrier acts as an important reminder that individuals, and not groups, are before the court being prosecuted. As such, in a situation like this case, when the issue is identity, it is the individual who must be linked to the conduct. While Perrier serves as a critical reminder to trial judges on this point, the reminder does not carry with it a higher threshold test and there is no reason why it should. Whether an individual acts alone or in a group, it is the link between him and the act that is important.[8] I can see no compelling reason why the individual needs to be more heavily linked to the acts simply because he is alleged to have acted with others.
[51] The next reason for rejecting the suggestion of a higher threshold test rests in the court’s specific consideration and rejection of a conclusiveness test in Handy, decided just two years prior to Perrier. In Handy, the court was asked to impose a “conclusiveness” test, meaning that the probative value of the evidence had to be so high “as to be virtually conclusive of guilt” before admission could be granted: Handy, at paras. 94-97. While engaging the term in a slightly different context than the defence do in this application, the comments of the court in Handy are nonetheless instructive. As Binnie J. noted, this type of threshold test would take “the trial judge’s ‘gatekeeper’ function too far into the domain of the trier of fact”: Handy, at para. 97. I find that this is equally true in the group crime context.
[52] Moreover, having decided this issue in 2002, the court was no stranger to the potential for fluctuating tests for the admission of similar fact evidence, including the concept of a conclusiveness test, or even a near conclusiveness test. Despite its familiarity with the potential for a more vigorous test as a prerequisite to admission, the court did not articulate one in Perrier. Again, the court’s silence on the issue speaks loudly. If the court had intended to depart from the timeworn Sweitzer some evidence test, and replace it with a near conclusiveness test, the court would have said it was doing that.
[53] I find that having quoted from Sweitzer and discussed the some evidence threshold in Perrier, and having rejected a conclusiveness test inHandy, Perrier must be read as imposing the pre-existing Sweitzer threshold for admission. While trial judges are reminded to look for “independent evidence” linking the accused to the group’s crimes, there need be no more than some independent evidence in this regard. By reinforcing this standard, the gatekeeper’s role is sure not to enter the domain of the trier of fact.
[54] As for the suggestion that certain comments made by Major J. reveal that he implicitly imposed a linkage test exceeding the some evidence requirement, I do not agree. When these comments are considered in their correct context, with respect, they do not support the proposition put forward.
[55] The comments relied upon include the court’s suggestion that “[i]dentifying the group will not likely facilitate prosecution where membership in the group was not constant” unless the role said to be played by an accused is distinct: Perrier, at para. 33. The defence also rely upon the following comment:
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. (See Perrier,at para. 34)
[56] Importantly, these comments do not appear in the part of the judgment dealing with principles of “Admissibility of Similar Fact Evidence for the Purpose of Identification”. Rather, they are located within the part of the judgment dealing with the “Application of Similar Fact Evidence to Crimes Committed by Groups”.
[57] In this latter part of the judgment, the court provides guidance in terms of how the “trier of fact” should go about the task of “using” similar fact evidence in a group crime context. The court discusses a two-stage test. At the “first stage”, where the group is being identified, the Arp test will be used to determine whether “one group activity can be used to identify the group responsible for another”: Perrier, at para. 31. Assuming the first stage is passed, the “trier of fact should be permitted to draw an inference that the same gang committed the acts”: Perrier, at para. 31.
[58] Where the evidence is to be used to identify an individual accused, and not just the group, a “second step” is required: “[o]nce the trier of facthas 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 [emphasis added]”: Perrier, at para. 31. In a rotating group environment, where no group member is said to play a distinctive role, this second step requires that the trier of fact find a “sufficient connection between the individual and the crimes of the group” by locating “independent evidence linking the accused to each crime”: Perrier, at para. 32.
[59] The two prerequisite approach in Perrier is different than that engaged by the trier of fact in a non-group environment. Indeed, in Arp, the court was asked to impose a requirement on the trier of fact that the accused be found guilty of one act beyond a reasonable doubt before that act could be used as similar fact evidence in relation to another act. This was referred to as an “anchor” approach to similar fact evidence. In rejecting this requirement, Cory J. observed that while a reasonable doubt may exist in relation to each similar act in isolation, two or more similar acts may support one another to arrive upon proof beyond a reasonable doubt in relation to each of the acts: Arp, at para. 66. It was ultimately determined that the trier of fact should be instructed that “they may find from the evidence … that the manner of the commission of the offences is so similar that it is likely they were committed by the same person”. If the trier of fact arrives upon this conclusion, “then the evidence on each of those counts may assist them in deciding whether the accused committed the other similar count or counts”: Arp, at para. 80. Notably absent from the recommended instruction is any reference to linkage evidence.[9]
[60] While I agree with the defence that Perrier injects something new into the rotating group similar fact context, it largely rests in the second safety valve imposed on the trier of fact when considering group similar fact evidence; the need to first find independent evidence linking the accused to the acts before the evidence can be used to identify the accused (as distinct from the group).
[61] As before, the defence rely upon certain passages in Perrier to suggest that a higher threshold test than the one set out in Sweitzer has been imposed as part of the admissibility test: Perrier, at paras. 33-34. Importantly, the passages relied upon by the defence follow upon the court’s discussion of the two-step test to be conducted by the trier of fact before rotating gang similar fact evidence can be used to identify an individual. The court’s comments must be read in light of these preceding passages.
[62] I read the comments in Perrier, set out at para. 55 of this ruling, as the court making practical observations arising from the two-step test imposed on the trier of fact. The court’s comment that “[i]dentifying the group will not likely facilitate prosecution where membership in the group was not constant”, is a different way of stating the usage rule. The reality is that identifying the group will not typically facilitate prosecution unless the trier of fact also finds independent evidence linking the accused to the group’s acts. Moreover, once the linkage evidence if found, “the utility of the inference may have dissipated” because, by the time that the trier of fact has linked the accused to each of the acts, the trier of fact will already be some way down the path to identifying the accused as a participant in those acts. I do not read these comments as support for the proposition thatPerrier imposed a higher or more robust admissibility test.
[63] As for the defence argument that the application of the law to the facts in Perrier supports the view that the court implicitly imposed a higher threshold test for linkage evidence, I do not agree.
[64] The three home invasion offences that formed the subject of the similar fact evidence in Perrier were committed on December 15, 1997, January 2 and 14, 1998. Mr. Perrier was convicted of the January 14th offence prior to his trial resulting in the appeal. There was strong evidence linking him to that crime.
[65] As for the January 2nd offence, some of the stolen property was located in an apartment in which Perrier and two other men lived. The other men were also alleged to be involved in the robberies. The stolen property was found in a room containing Perrier and another man’s identification. Justice Major considered the non-exclusive use of the apartment “important”.
[66] The other independent evidence linking Perrier to the January 2 and December 15 crimes came from a witness named Wang. Mr. Wang had been convicted in relation to two of the home invasions, been sentenced to a long period of custody, and had been placed in the witness protection program. He had also been promised assistance with the parole and immigration authorities. On any account, Wang was a concerning Vetrovecwitness.[10]
[67] The only other evidence in respect to Perrier were call records that showed Wang and Perrier’s phones in communication before and after each of the incidents. There was no evidence as to where the phones were located at the time or what was said. As well, there was one intercepted phone call between Perrier and Wang that Ryan J.A., in the court below, said could be interpreted as expressing a concern about a “snitch”.
[68] Justice Major described the evidence available to link Perrier to the crimes as follows:
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. (Perrier, at para. 39)
[69] The fact that Mr. Perrier was a member of the group during the January 14th incident (the one for which he was convicted), could not be used to suggest that he acted as a member of the group on other occasions: Perrier, at para. 40. He had to be linked by independent evidence to each of the similar acts.
[70] The “independent evidence” linking him to the December 15 and January 2nd acts was insufficient to achieve this purpose. In arriving at this conclusion, it appears that the court heavily discounted, if not altogether ignored the Vetrovec evidence for which there was little to no corroboration. Given the known and obvious dangers associated with Vetrovec evidence, it is unsurprising that the court concluded as it did. To rely upon uncorroborated Vetrovec evidence as the means by which to link Perrier to the group acts, would have the effect of permitting dangerous evidence to support the admission of propensity evidence. This is counterintuitive.
[71] Removing Wang from the equation, the court was left with some phone contact, the non-exclusive possession of stolen property, and a potential “snitch” call. Other than the final home invasion for which Perrier had already been convicted, there was a dearth of independent evidence linking him to the other two crimes. As such, I do not accept the submission that the application of the law to the facts in Perrier reveals the imposition of a near conclusiveness test. Indeed, the facts in Perrier could be easily said to fall well short of the requirement of some evidence of linkage.
[72] In the end, and for all of the reasons above, I find that the admissibility test for linking an accused to the similar acts of a rotating group is “some evidence.” The evidence must be comprised of something other than simple membership in the group.
The Legal Principles Applied
[23] It is clear to me that the battleground here is with regard to the Toronto Police Service Information charges. While Mr. Willschick did not expressly concede that a dismissal of the abuse of process application and a review of the similarities, as striking and numerous as they are, between the Oakville and Scarborough occurrences would likely result in success in the direct indictment count-to-count aspect of the Crown’s similar fact evidence application, it is also true that his submissions focussed almost entirely on the admissibility of the extrinsic evidence.
[24] I agree with Mr. Willschick – the evidence that is the subject matter of the Toronto Police Service Information charges is not admissible at the trial in Halton scheduled to take place in September 2022.
[25] Otherwise, however, the Crown’s application is granted.
[26] In making that ruling, I acknowledge Mr. Godinho’s sound submission that there is a “silver bullet” here – the existence of Mr. M.’s DNA at all of the occurrences, including the hockey bag involved in the Toronto Police Service Information occurrence.
[27] Mr. Godinho is also correct when he submits that there is no prohibition against a court faced with a similar fact evidence application on identity in the context of group activity from using DNA evidence at both steps in the analysis, that is on the question of group identity and on the question of specific linkage evidence vis a vis the individual accused.
[28] Further, Mr. Godinho is correct that it would generally be a rarity for a court to exclude proffered similar fact evidence, on the basis of its prejudicial effect outweighing its probative value, in circumstances where it has been established on a balance of probabilities that the acts were committed by the same group.
[29] This is one of those relatively rare instances, however, keeping in mind that the risk of reasoning prejudice tends to increase when the similar acts are extrinsic to the indictment. R. v. MacCormack, 2009 ONCA 72, [2009] O.J. No. 302 (C.A.), at paragraph 56.
[30] There are certainly strong similarities between the Toronto Police Service Information occurrence and those in Oakville and Scarborough, and there is damning DNA evidence against Mr. M. which implicates him in all three affairs, but we also cannot ignore the marked differences between what allegedly happened in Toronto and what occurred in Scarborough and Oakville. That the Crown feels compelled to offer to not seek to admit substantial aspects of the Toronto occurrence, including the drugging and lengthy period of kidnapping and holding the victim hostage for ransom, though laudable, proves the point.
[31] The proof of the point is evidenced, as well, in a review of the charging documents themselves. The number of accused persons implicated, the number of charges laid, and the types of charges laid, are more different between the Toronto occurrence and the other two as compared to between the Oakville and Scarborough occurrences.
[32] All of this is to say that, even accounting for the damning DNA evidence, I find that the prejudicial effect of admitting into evidence at the Halton trial the extrinsic evidence of the Toronto Police Service Information occurrence would outweigh its probative value.
[33] I think that it would be unreasonably difficult to try to keep the lid on those aspects of the Toronto occurrence that even the Crown does not seek to have admitted, and I think that the Crown at the Halton trial will have a formidable case against Mr. M. without having to resort to the extrinsic evidence, and I am worried that the risk of compromise to Mr. M.’s fair trial rights, free from impermissible reasoning, is too significant to permit the extrinsic evidence to be admitted.
IV. Conclusion
[34] For all of the foregoing reasons, (i) the defence abuse of process application is dismissed, and (ii) the Crown’s similar fact evidence application is granted but only with regard to the counts on the Indictment. The extrinsic evidence aspect of the Crown’s application (regarding the Toronto Police Service Information occurrence) is dismissed.
C.J. Conlan
Electronic signature of Conlan J.
Released: January 19, 2022
COURT FILE NO.: CR-53/21
DATE: 2022 01 19
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Mr. M.
REASONS FOR decision - defence abuse of process application and crown similar fact evidence application
Conlan J.
Released: January 19, 2022