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Appellant's Factum Court File No. 33694 IN THE SUPREME COURT OF CANADA (On appeal from the Court of Appeal for British Columbia) BETWEEN: LARRY WAYNE JESSE Appellant AND: HER MAJESTY THE QUEEN Respondent An Order has been made in this case directing that the identity of the complainant(s) and any information that could disclose their identity not be published in any document or broadcast in any way pursuant to Section 486.4 (1) of the Criminal Code APPELLANT'S FACTUM Gil D. McKinnon, Q.C. Gowling Lafleur Henderson #I500 - 701 West Georgia Street 26'h Floor,lGO Elgin Street Vancouver, B.C. V6E 4H1 Ottawa, ON KIP 1C3 Telephone: (604) 601-561 6 Telephone: (613) 233-1781 Facsimile: (604) 601-561 7 Facsimile: (613) 563-9869 E: [email protected] E: henrv.brown@~owlinas.com Counsel for the Appellant Henry S. Brown, Q.C. Ottawa Agents for the Appellant Jennifer Duncan Burke-Robertson Elizabeth Campbell Barristers and Solicitors Attorney General of British Columbia 70 Gloucester Street Criminal Appeals & Special Prosecutions Ottawa, ON K2P OA2 6th Floor, 865 Hornby Street Telephone: (613) 236-9665 Vancouver, B.C. V6Z 2G3 Facsimile:(613) 235-4430 Telephone: (604) 660-1 126 E: [email protected] Facsimile: (604) 660-1 133 E: Jennier.Duncan@,qov.bc.ca Counsel for the Respondent Robert E. Houston, Q.C. Ottawa Agents for the Respondent INDEX Page Part l Statement of Facts A. Overview B. Appellant's Record C. Similar Fact Voir Dire D. Appellant Testified on Trial E. B.C. Supreme Court's Reasons for Judgment F. B.C. Court of Appeal's Reasons for Judgment Part I1 Questions In Issue On a similar fact voir dire is: A. a prior conviction admissible, and if so, B. is it rebuttable evidence, or binding and conclusive? Part Ill Argument 16 Introduction 16 Admitting Prior Conviction Distorts Inquiry 17 If Conviction Admissible, Not Binding or Conclusive 19 Chatter Rights Apply to Voir Dire 20 First Error - Unjustified Distinction (voir dire Itrial) 22 Second and Third Errors - Restricting Mahalingan 23 Fourth Error - Not Recognizing Indirect Challenge 29 Fifth Error - Not Recognizing Errors in Judge's Analysis 29 Conclusion 32 Part IV No Submission on Costs 33 Part V Order Sought 33 Part VI Table of Authorities 34 Part VII Statutes Cited 35 PART l STATEMENT OF FACTS A. Overview 1. The issues on this appeal are: (i) whether an accused's prior conviction is admissible as similar fact evidence on a voir dire in a criminal trial, and if so, (ii) whether the conviction is prima facie evidence that can be rebutted or is conclusive and binding? 2. Identify was the critical issue at the Appellant's trial of a 2005 sexual assault. To prove this element the Crown tendered similar fact evidence. On a voir dire the Crown filed the Appellant's 1995 conviction of a 1993 sexual assault and called several witnesses who had testified at that trial. Through the cross-examination of witnesses the Appellant contested the Crown's evidence, including the validity of his prior conviction, but did not testify. In admitting this evidence the trial judge said the 1995 conviction was an "uncontroverted finding" (that the Appellant committed the 1993 offence) and that he was estopped from contesting it on the voir dire, but not on the trial. The Appellant testified on the trial and denied any involvement in both offences. The trial judge relied on the similar fact evidence (and prior conviction) to find the Appellant guilty. 3. The B.C. Court of Appeal said a prior conviction is admissible as prima facie evidence that can be rebutted so long as it does not amount to an abuse of process. In dismissing the conviction appeal the Court of Appeal created a novel, unjustified distinction. It said that on the trial proper (where guilt or innocence is determined) neither issue estoppel nor abuse of process were applicable against an accused. However, on the voir dire (where the admissibility of evidence is determined) it was an "open question" as to whether the Crown could use estoppel to prevent an accused from challenging a prior conviction. The Court said the judge may have erred on this point but it was of no consequence because the Appellant did not testify on the voir dire, and if he had done so, his attempt could have been rejected as an abuse of process. 4. The Appellant's position is that the Court of Appeal is wrong because (i) it failed to recognize that an accused's ss. 7 and 11 (d) Charter rights are fully engaged throughout the trial, including a voir dire to admit similar fact evidence, and (ii) it overlooked the significant prejudicial effects of an accused's prior conviction. B. Appellant's Record 5. R. v. Mahalingan, [2008] 3 S.C.R. 316 was decided after the trial judge rendered her decision but before the Court of Appeal heard this appeal. The background for the Questions in lssue are found in four sections of the Appellant's Record Vol. I ("A.R."): (i) Ruling on Voir Dire to Admit Similar Fact Evidence (pp. 28--45, paras.66-log), (ii) Ruling on Voir Dire re Charter of Rights (pp. 52-54,paras.7-9), (iii) B.C. Supreme Court's Reasons (pp.119-158, paras.119-135,137,147,175-178,210-218), and (iv) B.C. Court of Appeal's Reasons (pp.189-193,paras.94-105). The Appellant was declared a dangerous offender and given an indeterminate sentence on February 17, 2009. C. Similar Fact Voir Dire (a) Crown's Position 6. J.S., the complainant from the 1995 trial, was deceased. Due to the passage of time, the Crown was not able to produce a transcript of the 1995 trial. The Crown tendered the similar fact evidence through three avenues. First, it called 10 witnesses who had testified at the 1995 jury trial - one witness (Matsutani) who saw, from a distance, the sexual assault in a public lane; three friends of Matsutani (Fox, Boudewyn,Steele) who saw a man leave the lane and followed him; four police officers (Sgt. Hermann, Cst. Ralla, Sgt. Oleskiw, Cst. Chambers) who attended the scene and arrested a male; a medical doctor (Dr. Loubert) who examined the complainant and retrieved two plastic bags from her vagina; and the Crown counsel (Matei) who prosecuted the case. These witnesses testified about the circumstances of the offence, the description of the assailant, the police apprehension of a male person near the crime scene, and the previous trial. Matei testified that there was no DNA evidence in the 1995 prosecution, that Jesse had testified (denying any involvement in the offence), that the jury convicted him, and that he was sentenced to seven years: A.R. II, pp. 35- 46.Three witnesses (Fox, Boudewyn, Sgt. Hermann) identified the Appellant as the person who the police arrested that evening: A.R. II, pp. 1-197; A.R. Ill, pp.1-39. 7. Second, the Crown filed a true copy of the 1995 Indictment certifying the Appellant's conviction and seven year sentence for this offence: Exhibit 9, A.R. IV, pp. 92-93. The Crown's position was that the Appellant's 1995 conviction for sexual assault was conclusive proof of prior (similar fact) conduct which the Appellant could not challenge on the voir dire because of issue estoppel and res judicata: A.R. Ill, p. 40 (34) - p. 46 (16). During final submissions on the voirdire Crown counsel stated: Now, my Lady, the issue that I propose to discuss first off is what use, if anything, can we make of Mr. Jesse's prior conviction for a sexual offence, and in order to prove that Mr. Jesse had sexually assaulted (J.S.), it's the Crown's position that it is entitled to rely on the fact that he was convicted in 1995 of that particular offence. That has been proven beyond a reasonable doubt by a court of competent jurisdiction and importantly, as between the Crown and Mr. Jesse, that conviction is conclusive proof that he committed the offence. He cannot argue in a subsequent proceeding that he did not perpetrate the crime: A.R. Ill, p. 40 (34-47). 8. During the voir dire it was recognized that there were three issues: (i) was the prior conviction admissible, and if so (ii) for what purpose, and (iii) could the Defence challenge its validity?: A.R. II, p. 151 (10) - p. 158 (30). Crown counsel submitted that if the conviction was not admissible she would rely on the identification evidence of the 1995 witnesses but acknowledged that the similar fact application would not be "nearly as strong": A.R. II, p. 153 (43) - p. 154 (1). [The judge admitted the prior conviction as conclusive evidence that the Appellant committed the 1993 offence; she never assessed the identification evidence - see para.24,infra.l 9. Third, the Crown also filed a certificate of fingerprints from the Appellant's arrests on the 1993 and 2005 offences to prove that the Appellant was the same person who was convicted at the 1995 trial: Exhibit 10, A.R. IV, pp. 94-96; A.R. I, p.38 (para.92), A.R. 11, p. 150: Crown submissions - A.R. Ill, p. 46 (17 - 44). For this purpose the Crown also relied on the in-dock identification of three witnesses from the 1995 trial (Sgt. Hermann, Steele, Boudewyn). Crown counsel submitted that one might be a "little worried about the in-dock or in-court identification by one of those individuals" but that having three such identifications strengthened each of their identifications.
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