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in this case directing that the identity of the complainant(s) and any information that could disclose their identity not be published in any document or broadcast in any way pursuant to Section 486.4 (1) of the Criminal Code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 , 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 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 (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. [The trial judge adopted this submission: A.R. I, p. 38 (para.92) - see also, para.27, infra)] (b) Defence Position 10. The Defence attacked the admissibility of the similar fact evidence on three fronts. First, the Defence argued that the dissimilarities between the 1993 and 2005 offences were greater than their similarities and that the probative value of the similar fact evidence was outweighed by its prejudicial effect: see Defence submissions, A.R. Ill, p. 57 (19) - p. 76 (28). Second, the Defence argued that the 1995 conviction was inadmissible, but if admissible, the Defence was entitled to challenge its validity by attacking on the voir dire the Crown witnesses' identification of the Appellant as the perpetrator of the 1993 offence: see Defence submissions, A.R. Ill, p. 76 (29)- p.101 (2); p. 113 (17-47); Sur-Reply p. 108 (42) - 109 (30). The Defence filed a police photo of the Appellant just after his 1993 arrest to show discrepancies with Matsutani's description of the assailant: T. II, p. 151 (22-41); photo - A.B. IV, p. 103. Third, the Defence argued that the Crown had failed to prove that the Appellant was the same person who was convicted of the 1993 offence. On the voir dire the Appellant did not testify or introduce evidence that he had appealed the conviction: A.R. I, p.39 (para.93).

(c) Defence Challenged Identification Evidence On 1993 Offence 11. Defence counsel cross-examined the Crown witnesses and made submissions about inconsistencies and inadequacies in their descriptions of the perpetrator of the 1993 sexual assault, and defects in police identification procedures (having a witness identify a suspect who was handcuffed in police custody): Defence submissions - A.R. Ill, p. 90 (19-35). Defence counsel had a transcript of the preliminary inquiry and some witness statements, which he used to cross-examine five witnesses: Matsutani - A.R. II, p. 32 (1-21), Fox - A.R. II, p. 62 (18) - p. 63 (27); Chambers - A.R. II, p. 103 (8) - p. 104 (43); - A.R. II, p. 180 (39-47), p. 186 (25)- 190(7); Boudewvn - A.R. Ill, p. 10 (27-47).

12. In her Ruling on the voir dire the trial judge reviewed the Crown witnesses' but did not summarize or assess their evidence relating to the identification of the Appellant as the perpetrator of the 1993 offence: A.R. I, pp. 8- 20 (paras.16- 47). In her view a voir dire was "....not the proper forum for the accused to now attempt to raise a reasonable doubt as to his guilt in relation to the 1993 sexual assault": A.R. I, p. 8 (para.l6), p. 37 (para.89), p. 39 (para.95). A summary of the Crown witnesses' problematic identification evidence is in paras.13-18, infra.

13. Matsutani was the only eyewitness to the sexual assault: A.R. II, p. 157 (13-25). He could not identify the Appellant as the perpetrator of the 1993 assault. Matsutani said he saw the assailant in police custody shortly after the offence: A.R. II, p. 12 (21- 23), p. 15 (28-45). The Defence argued that his description of the assailant's hair colour and facial hair was inconsistent with the Appellant's appearance in the police photo taken after his arrest that evening: A.R. Ill, p. 90 (19-35); Trial Judge's Summary of Matsutani's Testimony -A.R. I, pp. 8-10 (paras.17-20): Exhibit B, A.R, IV, p. 103.

14. Fox testified that he would not be able to recognize the perpetrator if he saw him again: A.R. II, p. 50 (10-16); Trial Judge's Summary of Fox's Testimony - A.R. I, pp. 8- 10 (paras.17-20). Fox said the male who left the alley turned riqht on Seymour Street: A.R. II, p. 48 (34-39) - see Boudewyn's testimony - para.16, infra.

15. Steele identified the Appellant in court as the person Fox had pointed out to her on a street (Seymour) near the crime scene and as the person she subsequently saw in the custody of a police officer: A.R. II, p. 162 (5) - p. 167 (41) - p. 490 (3), p. 171 (19- 29), p. 173 (36-42), p. 194 (36-44). The Appellant was the only non-official sitting in the court room; he was sitting in the prisoner's docket wearing prison clothing. Steele knew from her work as a sheriff that an accused person always sat in the prisoner's dock: A.R. Ill, p. 183 (29-42); Judge's Summary of Steele - A.R. I, pp. 12-13 (paras.24-27).

16. Boudewvn identified the Appellant in court as the person he saw leaving the alley in 1993 and the person he identified at the preliminary inquiry and 1995 trial: A.R. Ill, p. 11 (17-43). Boudewyn said he lost sight of the male after he turned left on Seymour w:A.R. Ill, p. 37 (38) - p. 38 (15). Fox pointed a male out to him on the street. Fox's indication was an "important factor" in Boudewyn's belief that the male on the street was the same person who had left the lane: A.R. IV, p. 17 (7) - p. 18 23). On the night of the assault a police officer asked Boudewyn if the person in handcuffs in police custody was the person he had followed out of the lane. Boudewyn confirmed that was the person: A.R. Ill, p. 4 (12-34) - p. 5 (4); Trial Judge's Summary of Boudewyn's Testimony - A.R. I, pp. 13-14 (paras.28-31).

17. Sqt. Hermann identified in court the Appellant as the person he arrested at the scene after civilians had pointed to him: Trial Judge's Summary of Hermann's Testimony - A.R. I, pp. 14-15 (paras.17-20).

18. Cst. Ralla was Sgt. Hermann's partner on January 26, 1993. Ralla was not able to identify with 100% certainty the person Sgt. Hermann had in custody that evening and could not be sure if the Appellant was the same person: Trial Judge's Summary of Cst. Ralla's Testimony - A.R. I, p. 15 (para.34).

(d) Question Posed By Trial Judge 19. At the conclusion of the voir dire, the trial judge asked counsel to answer three questions, which she repeated at the outset of her Ruling. The second question is relevant to this appeal and asks:

2. What effect does proof of the accused's conviction in 1995 for the 1993 sexual assault have on the admissibility of the circumstances pertaining to the 1993 sexual assault as similar fact evidence in this trial?

Or, alternatively, is it open to the defence to challenge the accused's conviction for the 1993 sexual offence now, based on the frailties of eyewitness identification and other alleged irregularities, as a way of diminishing the purported link between the accused and the circumstances of that offence?: A.R. I, p.5 (para.8); A.R. Ill, p.105 (1-38).

This question was answered in para.109 of her Ruling. She said the 1995 conviction was admissible and the Appellant could not challenge it: para.24, infra. (e) Ruling on Voir Dire (i) Arp (Stage 1) - Prior Conduct "Highly Probative" 20. The trial judge found that the similar fact evidence pertaining to the nature of the sexual assault of J.S. was "highly probative": A.R. I, p. 29 (para.68). She found that the Crown had proved on a balance of probabilities that there was a "striking similarity" between the sexual assaults of 1993 and 2005: A.R. I, p. 29 (para.70) - p. 36 (para.84).

21. The trial judge concluded there was no significant risk of moral prejudice: A.R. I, pp.36-38 (paras.85-88). Referring to the prior conviction, she said there was "cogent evidence linking the accused with the evidence of the similar act." (para.87)

22. With respect to reasonincl preiudice she stated her conclusion in one paragraph:

[89] The concept of reasoning prejudice is founded on the potential distraction of the trier of fact from the offence charged and the potential for the undue consumption of time. I find that there is no appreciable risk of reasoning prejudice in this case. The similar fact evidence alleged is in relation to an incident that has already given rise to a charge of sexual assault against this accused that has been proven beyond a reasonable doubt to have occurred. He is not entitled, in my view, to be re-tried in relation to that allegation in the context of these proceedings. To do so would be contrary to and unduly time consuming and potentially distracting to the trier of fact. All that is required in this case is to focus on the similarities or lack thereof in relation to each event: A.R. I, p. 37.

23. The trial judge concluded that the probative value of the 1993 offence outweighed its prejudicial effect: A.R. I, p. 38 (para.90).

(ii) Arp (Stage 2) - Evidentiary Link Established By Prior Conviction 24. With respect to the second issue on the voir dire (whether there was some evidence which linked the 1993 conduct to the Appellant), the trial judge did not rely on, let alone consider, the identification evidence of the witnesses from the 1995 trial who testified before her. She relied exclusively on the evidence of the prior conviction (The B.C. Court of Appeal reached the same conclusion, para.30, infra: Reasons, para.81). Her Ruling on this point is summarized in the following paragraphs: [94] Mr. Butterfield has endeavoured to highlight the weaknesses in the Crown's case in 1995 via the cross-examination on this voir dire of some of the witnesses that the Crown called at that trial. Understandably, some memories have faded, some witnesses were unavailable, and much, including the victim J.S., has been lost with the passage of time. Although there appear to be some inconsistencies in the various descriptions of the perpetrator of the sexual assault of J.S. by the eyewitnesses now called on this voir dire, and potentially some dubious practices engaged in by the police regarding the issue of identification, those matters and Jesse's denial of the offences charged would have been brought to the attention of the jury who ultimately convicted him.

[95] 1 find that the Crown is entitled to rely on Jesse's conviction by a jury for the 1993 sexual assault for the limited purpose of meeting the to a balance of probabilities that he was its likelv perpetrator. I find that I am unable to come to any other conclusion given that the conviction stands and, bv definition, constitutes an uncontroverted findinq and conclusive proof bevond a reasonable doubt that Jesse committed that offence. Therefore, I find that the Crown is entitled to rely on the 1995 conviction of Jesse for sexual assault in any subsequent proceedings involving him, within the normal rules of evidence that attach to the proper use of prior convictions.

[96] 1 am unaware of any rule of evidence that would preclude this Court from considering his conviction for the 1993 sexual assault, properly proved, for the limited purpose of establishing identity to a balance of probabilities within the context of the alleged similar fact evidence.

[98] 1 accept that once a person is tried and convicted of a criminal offence and either no appeal as to conviction is taken or the appeal or appeals are unsuccessful, then the matter has been definitively determined, absent a subsequent finding of wrongful conviction. The matter becomes res iudicata and the issue is estopped in relation to further proceedinqs.

[I081 Therefore, I find that the accused, having been found guilty of the sexual assault of J.S. in 1995, which, as he was the sole person charged, constitutes proof for these purposes, at least to a balance of probabilities. that he was the perpetrator of that sexual assault. Proof of his conviction for that offence and the surrounding circumstances available to the Crown, without a trial transcript and upon J.S. being deceased, required the Crown to call certain witnesses it had initially called in the 1995 trial to flesh out what occurred. However, in light of the proof of the accused's conviction, the Crown did not and does not have to set about to prove identification again. [emphasis added] [I091 In light of the foregoing, I find that the Crown is entitled to relv on the conviction of the accused for the 1993 sexual assault of J.S. as proof to a balance of probabilities that he was the perpetrator of the assault and is, therefore, linked to it as similar fact evidence relevant to the issue of m.The answer to the second issue is that proof of the conviction is admissible for this purpose and it is not open to the accused to challenge his conviction for that offence in these proceedings.

A.R. I, pp. 39-46 [emphasis added]

25. The trial judge said that in light of these findings it was not necessary for her to decide the question in para.19, supra, as to "...whether the similar fact evidence meets the test for , absent the link provided by proof of the conviction of the accused for the 1993 sexual assault: A.R. I, p. 46 (para.116). She also said it remained open for the Appellant to testify in the trial proper to say "...whatever he wanted to say about the prior conviction": A.R. I, p. 47 (para.117).

26. In her subsequent Ruling on Voir Dire re Charfer Rights the trial judge made it clear that she had relied on the 1995 conviction, and not the Crown witnesses' evidence of identification, to establish the Arp link at stage #2:

[para.9] ...... I found that proof of the accused's conviction for the 1993 sexual assault of J.S. was sufficient and proper proof that he was the perpetrator of that offence, so as to link him to the similar fact evidence for the purposes of determining this evidentiary issue. I also found that there was sufficient evidence in the present trial to link the accused to the social gathering (in 2005) that preceded the alleged sexual assault of J.M. Therefore, I found it unnecessarv to decide whether the proposed similar fact evidence from the 1993 sexual assault met the test for admission as evidence at trial, absent the link provided bv the proof of the accused's conviction for the 1993 sexual assault: A.R I, p. 52. (emphasis added) (iii) Accused Was Same Person Convicted of 1993 Offence 27. As noted in para.9, supra, the trial judge adopted the Crown's submission on this issue. She found that the Appellant was the same person who was convicted of the 1993 offence. She relied on the in-court identification of three witnesses from the 1995 trial (Sgt.Hermann. Steele, Boudewyn) and "more importantly" on the fingerprint certificate, which compared the prints of the 1993 and 2005 arrests of Larry Jesse: A.R. I, p. 38 (para.92). [See also B.C. Court of Appeal's reference to this evidence in its Reasons: A.R. I, p.186 (para.81); para.30, infra.]

D. Appellant Testified on Trial Proper 28. The Appellant testified on the trial proper. He denied committing the 1993 sexual assault and the 2005 sexual assault: A.R. I, p.125 (para.137). On cross-examination he agreed that he had never appealed his 1995 conviction or applied to have it overturned: A.R. I, p.128 (para.147). On re-examination, he said he wanted to appeal his 1995 conviction, his lawyer sought legal aid funding which was refused, and he did not consider appealing himself because he did not know he could: A.R I, p.132 (para.159).

E. Reasons for Judgment Trial Judge's Findings of Fact and Analysis A.R. I, pp. 78-160 29. A summary of the trial judge's facts and analysis are as follows:

Re Circumstances of Offence the 2005 sexual assault occurred at the residence of Gunar Borne and Chelsea Stubbs after a social gathering of excessive alcohol and some marijuana consumption (para.203); the complainant (J.M.) passed out from the consumption of alcohol (para.204); the Appellant and Stubbs' father left the residence to go home; Borne and Stubbs decided to take their car to look for the Appellant to give him a ride home but did not find him; when they left, the complainant (J.M.) and another friend (R) were passed out in the house; 8 when Borne and Stubbs returned about 10 to 15 minutes later they found the door locked; Stubbs broke an outer pane in the door; the Appellant appeared from the inside, opened the door, and left rushing by them (paras.192-193); upon entering the residence Bourne and Stubbs saw J.M. lying on the floor without any pants on; she was in a different location on the dining room floor from where she had been previously; there were several objects (including an electric toothbrush) from the bathroom on the floor beside her; the police attended at 1:40 a.m; J.M. was unresponsive due to alcohol; later that morning at her mother's place, J.M. experienced pain while urinating; she excreted a wine cork from her vagina and became very distressed; J.M. did not insert the cork into her vagina and was not able to say who did; it was highly unlikely R. inserted the cork into J.M.'s vagina although R's alcoholism, propensity to drink till he blacked out, and his movement in the house were noted as significant factors to consider on this issue (paras.170, 218);

Re Similar Fact Evidence on Voir Dire this evidence was admitted and became part of the evidence at trial (para.119); s Matsutani saw the assailant's unusual hand movements in relation to the victim (J.S.) on the loading dock of the Bay in Vancouver; Matsutani thought the man was inserting something into J.S. (paras.175, 216); witnesses confirmed aspects of Matsutani's testimony (naked woman on the Bay dock, a male walking away, and the police apprehending a male) (para.176); Dr. Loubert retrieved from J.S.'s vagina two plastic bags which were likely inserted by a blunt object other than a hand (paras.176-177);

Re Appellant's Testimony the Appellant's testimony about his description of the 2005 events (including his testimony that he left the residence and did not return and his denials of any sexual contact with the complainant) was not credible or reliable and was rejected (paras.178-179,192, 210, 218). His testimony did not raise a reasonable doubt about who inserted the cork into J.M.'s vagina (para.208); Re The Two Issues of Assault and Consent J.M. did not place the cork in her own vagina and did not know it was there until she became aware of it while urinating the next morning (paras.167,196,201); the complainant was incapable of consenting to sexual activity after she passed out: s. 273.1 (2) of the Criminal Code (para.204);

Re Similar Fact Evidence the similar fact evidence was "most significant" in terms of the third stage of the analysis under R. v. W. (D.), [I9911 1 S.C.R. 742 (para.209); similar fact evidence may be used as circumstantial evidence supporting the inference that the accused is predisposed to act in a certain way (para.213); the insertion of a foreign object into the vagina of an unresponsive woman may properly be regarded as a type of "hallmark or "calling card" (para.215); and the bags were likely packed into the vagina of J.S. with a blunt object other than a hand; with Matsutani's evidence, such activity by the Appellant was similar to a cork placed into J.M.'s vagina with bathroom objects of blunt ends (para.216).

Re Third Issue (Identity) In concluding her Reasons for Judgment, the trial judge stated: [217] The evidence of similar fact from the 1993 incident regarding the accused and J.S. is what I find conclusive in terms of the cluilt of Larry Jesse in relation to the 2005 incident. It is his highly unusual "calling card" of inserting foreign objects into the vaginas of passed out women as found in the case of J.M that permits me to conclude his guilt in this case of the offence of sexual assault as charged. [emphasis added]

[218] Otherwise, during the relevant short period of time an unconscious J.M is inside the B. residence with two men: R. who seems to be too intoxicated to have engaged in such an activity were he so inclined, which seems unlikely on the evidence; and the accused who denies returning to the residence a second time, but who I have found did so based on the evidence of G. and C. It is the accused's unique "calling card" of inserting a foreign object into J.M.'s vagina, when combined with all the other evidence in this case, which elevates the proof of Larry Jesse as the perpetrator of the sexual assault on J.M beyond a reasonable doubt. F. B.C. Court of Appeal Reasons (A.R. I, pp. 165-195) 30. With respect to the Questions in lssue on this appeal the Court of Appeal stated:

(a) Trial Judae's Use of Prior Conviction [60] It is clear at the admissibility stage the judge allowed the Crown to rely on the previous conviction for the limited purpose of linking the appellant to the similar acts. In my view, it is also clear the judge used the conviction for the same limited purpose when considering the guilt or innocence of the appellant ......

[81] In para.92 of her similar fact reasons, the judge referred to the fact three witnesses identified the appellant as the person involved in the 1993 assault, but it is clear the iudqe relied on the conviction to link the appellant to the result.

(b) lssue Estoppel and Abuse of Process [94] In paras.98 and 99, the trial judge concluded that the appellant was estopped from challenging his 1995 conviction "in the context of the voir dire" on the basis of res judicata or issue estoppel. In mv view, this may have been an error, but it is of no consequence for two reasons: the appellant did not testify on the voir dire, that is, he did not directly challenge the conviction; had he attempted to do so, in my view, his attempt could have been rejected as an abuse of process at the voir dire stage of the proceeding ......

[98] lssue estoppel cannot be invoked to prevent an accused from adducing evidence to support innocence, but it remains an open question whether the doctrine could be used to prevent an accused from challenqina a prior conviction at the admissibilitv staqe of a similar fact analvsis. The factors militating against the application of issue estoppel against an accused in a criminal case may not be in play.

(c) Distinction Between Voir Dire and Trial Proper [I011 It is important to recognize the distinction between the admissibility of similar fact evidence and its use by the trier of fact. The criteria for admission are similarity and a link to the accused resulting in a determination of whether probative value outweighs prejudice. Guilt or innocence is not determined at this stacle. In the trial proper, guilt or innocence is at stake. As the Court said in Arp, similar fact evidence is merely circumstantial evidence that must be considered and weighed with all of the evidence in the case. The issue to be decided is whether the accused committed the crime for which he or she stands charged. The fact a similar offence or conduct occurred is merelv part of the evidence beinq considered. It has no conclusive implications. Unlike the circumstances in C.U.P.E. ([2003] 3 S.C.R. 77), the ultimate issue is not whether the accused was guilty of a previous offence, but whether he or she is guilty of the offence now before the court. Neither issue estoppel nor abuse of process is applicable against an accused at this stage of the proceeding.

(d) General Principles [I021 1 take a number of propositions from a consideration of these cases: 1. a prior conviction is admissible as prima facie evidence that an accused was convicted previously of a crime; that evidence can be rebutted; 2. at the admissibility stage in a similar fact inquiry, rebuttal of the prima facie evidence must not constitute an abuse of the process of the court; 3. when determining the guilt or innocence of an accused, neither issue estoppel nor abuse of process apply to prevent an accused from contesting innocence; 4. if a prior conviction is admitted as similar fact evidence, it must be weighed with the evidence overall and cannot on its own establish guilt or preclude an accused from challenging the prior conviction as evidence supporting guilt on the charge then before the court.

(e) Conclusion [I031 On the similar fact evidence voir dire, the iudqe was not considering the quilt or innocence of the appellant. The sole issue on which the 1995 conviction was admitted was to provide a link between the appellant and the 1993 acts. The judge made it very clear the appellant could challenge the 1995 conviction in the trial proper where his guilt or innocence was at stake and he did so.

[I041 The similar fact evidence included the 1995 conviction that linked the appellant to the 1993 conduct. When considering guilt or innocence, the judge correctly weighed all of the evidence, similar fact and otherwise. It was the unlikelihood of coincidence between the earlier acts and the assault on J.M. that satisfied the judge one person committed both assaults. She used the conviction for the limited purpose for which the Crown was allowed to introduce it. The conviction merely linked the appellant to the similar acts. If the underlying rationale for the admission of similar fact evidence is met and probative value outweighs prejudice, I see no reason in principle for the exclusion of the evidence of the 1995 conviction for the purpose of considering the identification of the person who assaulted J.M. Had the trial been with a jury, it would have been incumbent on the judge to caution the jury clearly concerning the use they could make of the conviction. [emphasis added] PART II QUESTIONS IN ISSUE

31. At the admissibilitv stacle of a similar fact inquiry on a trial of sexual assault:

(A) Does the Crown have the right to file an accused's prior conviction of sexual assault to establish the evidentiary link between the accused and the prior conduct; and if so,

(B) Does an accused have the right to challenge the validity of his prior conviction?

Alternatively, do the doctrines of issue estoppel and abuse of process trump an accused's constitutional rights to make full answer and defence and to be presumed innocent? PART Ill ARGUMENT

A. Introduction 32. The B.C. Court of Appeal's decision is flawed in several respects.

33. First, the Court of Appeal made a novel, unjustified distinction between the voir dire and the trial. The Court failed to recognize that a decision to admit similar fact evidence can have significant, if not conclusive, implications for the verdict.

34. Second, this artificial distinction led to an erroneous restriction of the principles in R. v. Mahalingan, [2008] 3 S.C.R. 316 to the trial proper. The Court of Appeal was uncertain about whether issue estoppel could be invoked on a voir dire and concluded that abuse of process could be applied.

35. Third, the Court decided that if the trial judge erred in invoking issue estoppel it was of no consequence because the Appellant did not directly challenge the conviction by testifying on the voir dire. The Court overlooked the fact that he indirectlv challenged it by cross-examining the Crown witnesses' identification evidence relating to the 1993 offence and by tendering the Appellant's 1993 police photo taken after his arrest.

36. Fourth, the Court of Appeal erred in concluding that if the Appellant had attempted to challenge the validity of his 1995 conviction by testifying on the voir dire his evidence could have been rejected as an abuse of process.

37. Fifth, the Court of Appeal erred in failing to recognize that the trial judge's decision to invoke issue estoppel on the voir dire tainted the manner in which she had (i) assessed the prejudice of the prior conviction and (ii) balanced the probative value of the proposed evidence against its prejudicial effects.

38. A combination of these five errors led the Court of Appeal to sustain the trial judge's Ruling on the voir dire, which had overlooked the Appellant's s.7 and s. 11 (d) Charter rights (outlined below) and which had serious implications for the verdict. B. Admitting A Prior Conviction Distorts A Similar Fact Inquiry And Causes Undue Prejudice To An Accused

39. On a similar fact inquiry an accused's prior conviction should not be admissible to establish the evidentiary link (Arp - stage #2) between the tendered evidence and the accused for three reasons. First, similar fact evidence was never intended to provide conclusive proof of guilt on the trial proper: R. v. Arp, [I9981 3 S.C.R. 339, at paras.71- 74. As Cory J. stated:

[72] Similar fact evidence, on the other hand, as circumstantial evidence, must be characterized differently, since, by its nature, it does not carry the potential to be conclusive of guilt. It is just one item of evidence to be considered as part of the Crown's overall case. Its probative value in its ability to support, through the improbability of coincidence, other . As with all circumstantial evidence, the jury will decide what weight to attribute to it. The mere fact that in a particular case, similar fact evidence might be assigned a high degree of weight by the trier is entirely different from the concept that, by its very nature, the evidence has the potential to be decisive of guilt.

40. By its very nature, a prior conviction "has the potential to be decisive of guilt." Admitting a conviction as part of the similar fact evidence offends the Arp characterization of similar fact evidence and adds nothing to the critical issue (improbability of coincidence). As Doherty J.A. stated in R. v. B.T.J. (2006), 213 C.C.C. (3d) 235 (O.C.A.),at para.52:

Circumstantial evidence, no matter how cogent, that an accused committed one of the acts adds no force to the inference that the same person committed both of the acts: see David Paciocco & Lee Steusser, The Law of Evidence, 4'h ed. (Toronto: Irwin Law, 2005) at p. 72.

41. Admitting a prior conviction can distort the inquiry on the voir dire as well as the trial. The trial judge (on the voir dire) relied on the prior conviction as proof that the Appellant was (or likelywas) the perpetrator of the 1993 offence: A.R. I, p. 39 (para.95), p. 44 (para.l08), para.45 (para.l09), p. 52 (para.7) - see underlined sections of these paragraphs in para.24, supra. That is the wrong test. The test is whether there is "...some evidence which links the accused to the similar acts". As Cory J. stated: [56] ... Once the trial judge has concluded that the similar acts were likely the work of one person and that there is some evidence linking the accused to the alleged similar acts, it is not necessary to conclude that the similar acts were likely committed by the accused. The answer to this cluestion may well determine auilt or innocence. This is the very question which the trier of fact must determine on the basis of all the evidence related to the similar acts, including of course the accused's involvement in each act. .... [emphasis added]

42. Where the trial is by judge alone, a finding on the voir dire (based on a prior conviction) that the similar acts were committed (or likely committed) by the accused has the potential to taint the fact-finder's assessment of the trial evidence in favor of a conviction.

43. Second, where the trial is by judge and jury there is a serious risk of moral prejudice: R. v. Handy, [2002] 2 S.C.R. 908, para.139. If a jury knows that the accused was already convicted of a similar offence (whether or not he testifies) the "forbidden chain of reasoning" from general disposition to guilt is more likely to occur. Even with an adequate jury instruction against propensity reasoning, there is a real danger the jury would misuse the prior conviction to infer guilt.

44. Third, where the accused denies the similar acts (as in the case at Bar) there is a serious risk of reasoning prejudice: Handy, at para.146. This risk exists regardless of the format of the trial. Responding to a prior conviction is an insurmountable task. As defence counsel submitted at the conclusion of the voirdire:

I'm asking .... how a trier of fact could possibly deal with his denial, you know, in the face of a finding that he was convicted. That's why - you know, that's why I argued so strenuously against the conviction going in and was unsuccessful: A.R. Ill, p.137 (42) - p.138 (1).

45. Earlier in his submissions Defence counsel was more specific: .... It's huge prejudice to the accused. How can he testify at his trial in the face of that conviction? If he testifies on the Winfield case (2005) and says, "I wasn't the person who committed the crime in Winfield and I didn't commit the Vancouver offence (1993) then he's testified contrary to what the court has found to be a legal fact, that he did commit the offence (1993) and he's made to look like a liar. If, on the other hand, he says, "Okay, fine, you got me, I did the Vancouver case," then he's admitting perjury because you know that he's denied the offence when he first was called upon to testify in court (in 1995). So almost by operation of law his credibility is destroyed if he has to say anything about the Vancouver offence: A.R. Ill, p. 80 (20-37).

46. In the Crown's response to the leave application on this appeal the Respondent relied on the following dicta from the judgment of Charron J.A. (as she then was) in R. v. L.B. (1997), 116 C.C.C. (3d) 481 (O.C.A.) to support its position that a conviction could be used as similar fact evidence:

[26] The accused may have admitted the prior conduct, hence increasing its probative value. In some cases, the discreditable conduct will have been the subject-matter of a conviction and, provided the evidence remains available, it will be capable of proof bevond a reasonable doubt. Where the prior conduct formed the subject-matter of a charge and the accused has been acquitted, the Crown is precluded from calling this evidence: R. v. Verney (1994), 87 C.C.C. (3d) 363 (O.C.A.). [emphasis added]

47. This statement does not support the Respondent's position. If the Court had intended to sanction the use of a conviction as similar fact evidence, it would not have referred to the possibility of proving the similar conduct by the available evidence.

C. In Alternative - If Conviction Admissible, Not Binding Or Conclusive 48. In the alternative, if a prior conviction is admissible as similar fact evidence it is prima facie evidence. It is not binding and conclusive. It is evidence which can be rebutted by the accused on the voir dire andlor trial proper. Issue estoppel and abuse of process cannot prevent an accused from challenging a prior conviction. This position is consistent with the authorities which allow an accused to dispute or explain away a finding of guilt from an earlier trial where the accused pled guilty: R. v. C. (W.B.) (2000), 142 C.C.C. (3d) 490 (O.C.A.) at pp. 510-51 1; affd. on an unrelated point [2001] 1 S.C.R. 530; R. v. Ford (2000), 145 C.C.C. (3d) 336 (O.C.A.), at pp. 356-357. D. Charter Rights Apply to Voire Dire 49. It is axiomatic that sections 7 and 11 (d) of the Charter of Rights apply to every segment of a criminal trial, including a voir dire to determine the admissibility of evidence. In Erven v.The Queen, [I9791 1 S.C.R. 926, at p. 931, the Court states:

The function of the voir dire is to determine the admissibility of evidence. The function of the trial is to determine the merits of the case on the basis of the .

50. The inter-connection between the two is significant. Whether or not contentious evidence is admitted can have a very important impact on the outcome of the trial. Although the functions of the voir dire and trial differ, they are governed by the same overlapping principles: the presumption of innocence, procedural fairness, and the right to make full answer and defence.

(i) Presumption of Innocence - s. 11 (d) 51. In R. V. Whyte, [I9881 2 S.C.R. 3, at p. 15, this Court re-affirmed its statements in R.v. Dubois, [I9851 2 S.C.R. 350,a t pp. 357-59, and R. v.Oakes, [I9861 1 S.C.R. 103 by confirming that the presumption of innocence has at least three components:

First, an individual must be proven guilty beyond a reasonable doubt. Second, the Crown must bear the onus of proof. Third, criminal prosecutions must be carried out in accordance with lawful procedures and principles of fairness.

52. All three components apply on a voir dire to admit similar fact evidence that is prima facie inadmissible. The burden is on the Crown to prove admissibility: Handy, at para.55. The Crown often tenders the evidence to prove an element of the offence, such as identity, beyond a reasonable doubt and thereby convict the accused. The Defence tries to keep the evidence out by casting doubt on its probative value or showing unfair prejudice: Mahalingan, para.44. As noted by Binnie J. in Handy, para.148, citing McHugh J, in R. v. Pfennig (1995), 127 A.L.R. 99 (C.A.), at p. 147:

The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial. (ii) Fair Hearing I Trial - s. 7, 11 (d) of the Charter of Rights 53. In addition to s. 11 (d) of the Charter, s. 7 also entitles an accused to a "fair hearing". In R. v. Bjelland, [2009] 2 S.C.R. 651, at para.22, this Court cited the following statement of McLachlin J.(as she then was) in R. v. Harrer, [I9951 3 S.C.R. 562, at para.45:

At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community ....A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused. [emphasis added]

54. Procedural fairness extends to every aspect of a trial, including a dangerous offender hearing: R.v.Lyons, [I9871 2 S.C.R. 309, at p.362. What is fair depends on the context and what is at stake: R. v. Rodgers, 120061 1 S.C.R. 554, at para.47.

55. On a voir dire to determine the admissibility of similar fact evidence of prior misconduct (propensity/disposition), the stakes are high for an accused. A significant degree of procedural fairness is required. At a minimum an accused is entitled to challenge the proposed evidence by cross-examining Crown witnesses, objecting to the filing of documents, calling evidence, and making submissions.

(iii) Full Answer and Defence - s. 7 of the Charter of Rights 56. Section 7 of the Charter "...incorporates procedural fairness as an element of fundamental justice and in particular the right to make full answer and defence...": R. v. Rose, [I9981 3 S.C.R. 262, per Binnie J., at para.16. Section 7 is "inextricably intertwined" with an accused's s. 11 (d) Charter right to a fair trial: R.v.Seaboyer, [I9991 2 S.C.R. 577, at p. 603. Writing for the majority in Rose, Justices Cory, lacobucci, and Bastarache stated:

Rather, the right (s.7) entitles the accused to rules and procedures which are fair in the manner in which they enable the accused to defend himself against and answer the Crown's case. (para.99) A second and broader aspect of the right to make full answer and defence, which might be understood as encompassing the first aspect (the right to know the case to meet), is the riqht of an accused person to defend himself or herself a~ainstall of the state's efforts to achieve a conviction. The Crown is not entitled to engage in activities aimed at convicting an accused unless that accused is permitted to defend against those state acts. (para.103) [emphasis added]

57. This broad principle - that an accused has the right to defend himself against "...all of the state's efforts to achieve a conviction" - extends by definition to the voir dire which determines the admissibility of similar fact evidence. As Sopinka J. stated in R.v. Stinchcornbe, [I9911 3 S.C.R. 326, at p. 336, the right to make full answer and defence is: .....one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted.

E. First Error - Unjustified Distinction Between Voir Dire and Trial Proper 58. The B.C. Court of Appeal's distinction between the voir dire (admissibility of similar fact evidence) and the trial proper (where guilt or innocence is determined) tainted its analysis: Reasons, A.R. I, pp. 191-192 (paras.101,103); para.30, supra.

59. In light of the above noted constitutional principles, this distinction is not justified. The following statements in the Court of Appeal's Reasons suggest that these principles do not govern the voir dire because: (i) "Guilt or innocence is not determined at this stage", (ii) "...similar fact evidence is merely circumstantial evidence that must be considered and weighed with all of the evidence in the case...", and (iii) it "...has no conclusive implications": A. R. p. 185, para.101. Such statements fail to recognize that a similar fact inquiry is a significant component of a trial and that similar fact evidence is a powerful tool which sometimes has "conclusive implications." In convicting the Appellant the trial judge stated:

The evidence of similar fact from the 1993 incident regarding the accused and J.S. is what I find conclusive in terms of the quilt of Larry Jesse in relation to the 2005 incident: A.R. p.152 (para.208) (emphasis added) F. Second and Third Errors-Restricting Mahalingan Principles To Trial Proper 60. The Court of Appeal's benign view about the voir dire led to an erroneous exclusion of the principles in Mahalingan. The Court recognized that neither issue estoppel nor abuse of process are applicable against an accused during the trial proper: Reasons, A.R. I, p. 191 (para.101); para.30, supra. However for the voir dire, the Court was uncertain as to whether issue estoppel applied, and concluded that abuse of process did apply (para.98). With respect, the Court of Appeal is wrong. Neither issue estoppel nor abuse of process can be invoked on a voir dire in this situation

(a) Issue Estoppel 61. It is clear from the following passage in Mahalingan that the Crown cannot invoke issue estoppel to prevent an accused from challenging the validity of his prior conviction at a criminal trial:

[57] ...... In this sense, mutuality has never been part of Canadian , which recognizes that the presumption of innocence and the requirement that the Crown must prove every element of its case beyond a reasonable doubt trump issue estoppel. Where the Crown seeks to estop an accused from contesting his innocence based on decisions against the accused in prior proceedings, the claim for estoppel will fail. To permit the Crown to rely on issue estoppel in these circumstances would offend the presumption of innocence and the requirement that the Crown in a criminal proceeding bears the burden of proving its case beyond a reasonable doubt.

62. In R. v. M.B., [2011] O.J. No. 428 the Ontario Court of Appeal relied on this passage to find legal error requiring a new trial. At the first trial by judge and jury M.B. was convicted of one count of sexual touching and one count of sexual assault in relation to each of his two nieces, K.B. and J.B.

63. At M.B.'s subsequent trial, before judge alone, of sexual assault and sexual touching against his nephew (C.B.) the trial judge conducted a voirdire to determine the admissibility of K.B. and J.B.'s evidence as similar fact evidence. The Defence did not require the two girls to testify again. The Defence agreed that the trial judge could rely on a transcript of their evidence from the first trial. (It does not appear from the reported decisions that the Defence contested the validity of the convictions.) The trial judge recognized that at the admissibility stage of the similar fact evidence she only had to determine "....if the similar fact evidence is reasonably capable of belief': R. v. M.B., [2008] O.J. No. 2358, at para.62. In admitting the similar fact evidence the trial judge said the jury verdicts of guilt at the first trial would constitute prima facie proof on the trial that the accused sexually assaulted his two nieces. She said that if the accused sought to try to set that presumption aside in the trial, she would need to hear further argument (para.62).

64. On the trial proper M.B. testified and denied sexually assaulting his two nieces (K.B. and J.B.). Relying on Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, [2003] 3 S.C.R 77 the trial judge said M.B. could not re-litigate this issue: [I091 1 must also consider the weight of the similar fact evidence. Ms. Pirraglia relies on the fact Mr. B. was convicted of sexual assault in connection with J.B. and K.B. by a jury. When I made my ruling on the similar fact application, I left open the issue of whether or not I would be bound by the jury's verdict. Neither counsel made any further submissions on this issue at the end of the trial. I have considered the fact that Mr. B. was asked in this trial and denied sexually assaulting J.B. and K.B. As a matter of law, Mr. B. may appeal the finding of the jury in the other action, but in this action he cannot re-litigate the jury's verdict (Toronto v. C.U.P.E.) ..... I, therefore, accept the jury's findings as evidence of the fact that Mr. B. sexually assaulted J.B. and K.B.

Reasons for Judgment: R. v. M.B., [ZOO81 O.J. No. 2521

65. The trial judge said she would have acquitted M.B. without the similar fact evidence (para.101); see also Court of Appeal's Reasons (paras.14-16, 36).

66. Writing for the Ontario Court of Appeal Goudge J.A. stated:

[35] As we said in our earlier reasons ([2010] O.J. No. 5350), and as the Crown fairly acknowledged, the trial judge in the appellant's second trial erred in law in holding that the jury's verdict in his first trial put beyond his challenge in his second trial the evidence of K.B. and J.B. that the appellant had sexually assaulted them. That holding was legally wrong because in criminal law the principle of issue estoppel cannot be permitted to be used to free the Crown from proving every element of its case beyond a reasonable doubt.

[36] The trial judge relied on the similar fact evidence of K.B. and J.B. to convict and made clear that without that evidence she would not have done so. This error therefore requires that the appellant's conviction be set aside and a new trial ordered.

67. At issue in the case at Bar is whether the Mahalingan principle merely covers the trial proper or extends to a voir dire which determines the admissibility of similar fact evidence. The Appellant relies on the following three points to support his position that Mahalingan also covers the voir dire segment of a trial.

68. First, if Mahalingan did not extend to the voir dire there would be a "gaping hole" in procedural fairness, and an infringement of ss. 7 and 11 (d) of the Charter of Rights during an important segment of the trial.

69. Second, seeking the admission of similar fact evidence is one way the State discharges its burden to prove every element of the offence to "achieve a conviction". If the accused is entitled on the trial proper to challenge the validity of a prior conviction, the critical time to mount such an attack is at the admissibility stage (voir dire) of the similar fact evidence. Once that evidence is admitted it is often too late. From the Defence perspective the damage is done. With respect, the lower courts' statements that the accused can still challenge the validity of his conviction on the trial proper have a "hollow ring".

70. The case at Bar illustrates the problem. On the voir dire the Defence extensively cross-examined the Crown's witnesses on the identity of the perpetrator of the 1993 sexual assault. However, the trial judge chose not to assess the identification evidence because in her view the 1995 conviction was "conclusive proof" that he was the person who committed this offence: A.R. I, pp. 44-45 (paras.108-log), p. 46 (para.1 II). On the trial proper, the judge did not weigh the identification evidence of the 1993 sexual assault because she had already admitted the prior conviction "...as proof of identification to the required balance of probabilities in that context of that voire dire...": A.R.1, p. 119 (para.119). A critical issue was decided on the voir dire. Given this circular reasoning, it is not surprising that her Reasons for Judgment made only the following brief reference to the Appellant's denial of involvement in the 1993 offence:

2. He was extraordinarily calm in discussing his 1995 convictions in relation to J.S. for someone who served seven years for offences he denies committing: A.R. I, p.139 (para.178 (2)).

71. Third, the authorities recognize that a voir dire to determine the admissibility of evidence and the trial proper are inextricably linked: R. v. Duhamel, [I9841 2 S.C.R. 555; Mahalingan, at paras.43-44; Handy,at para.115. The following statement of Lamer J. (as he then was) in Duhamel reflects this essential connection between a voir dire to admit evidence (other than an accused's statement) and the trial proper:

Indeed, the circumstances considered by the trial judge in deciding the admissibility of a particular piece of evidence are directly related to the facts to be proved in support of the charge and to the nature of the evidence being adduced. Admissibility of such evidence is to be determined in light of the factual setting of each case. (pp. 559-560)

72. The degree of connection may be even greater for a similar fact voir dire. Of paramount concern is the "issue in question" for which the proffered evidence is tendered at trial. In assessing probative value the focus is on the similarities and dissimilarities between the similar fact evidence and the alleged offence. Trial judges are cautioned not to allow similar fact evidence "...to bear too much of the burden of the Crown's case": Handy, supra.

73. In sum, the similar fact voir dire is inter-twined with the rest of the trial. All of the proceedings are governed by the Charter of Rights. A criminal trial cannot be divided into two stages - one where Charter rights apply and the other where they are absent. (b) Abuse of Process 74. The Appellant relies on three points to support its position that during every stage of a criminal trial the Crown cannot rely on abuse of process to stop an accused from challenging his prior conviction.

75. First, this Court's discussion in Mahalingan about abuse of process suggests that this doctrine would not be available in this situation at any time during a criminal trial. Mahalingan noted two factors about this doctrine - (i) its "...high threshold for proof....", and (ii) "...the unpredictability of its operation". This Court observed that, "To date, the doctrine has not been much used to protect against re-litigation." Reference was made to Bradford & Bingley Building Society v. Seddon, [I9991 1 W.L.R. 1482 (C.A.), at pp. 1492-93, for the ".....proposition that re-litigation, without more, simply does not reach the threshold required for a finding of abuse of process." Not having an abuse of process doctrine available to defeat an accused's right to make full answer and defence is consistent with this Court's decision in Mahalingan and reflects the spirit of this Court's analysis in British Columbia (Afforney General) v. Malik, 201 1 SCC ?8.

76. Second, it would be incongruous to conclude that the Crown could not invoke one doctrine (issue estoppel) at trial but could rely on the other (abuse of process). Mahalingan points out that it is the presumption of innocence (and the Crown's burden to prove every element of the offence) that trumps the Crown's ability to "...estop an accused from contesting his innocence based on decisions against the accused in prior criminal proceedings" (para.57). Given this rationale, how could an accused contesting a prior conviction ever be viewed as an abuse of the court's process?

77. For a similar reason, the B.C. Court of Appeal's approach is inconsistent when it concludes that the abuse of process doctrine is unavailable on the trial proper (to prevent an accused from challenging his prior conviction) but is available on a voir dire. If (as submitted in paras. 67-73 supra) the Crown cannot invoke issue estoppel on a voir dire, how can the Crown rely on abuse of process? 78. Third, the Court of Appeal mistakenly relied on Toronto (City) v. C.U.P.E., supra, to support its view that in a criminal trial (i) a prior conviction is admissible as prima facie evidence that an accused was convicted of a crime, (ii) an accused can rebut the prima facie evidence if it does not amount to an abuse of process, and (iii) if the Appellant had attempted to directly challenge his prior conviction on the voir dire the court could have rejected it as an abuse of process. (As noted in para.64, supra, the trial judge in M.B. relied on Toronto (City) v. C.U.P.E., supra, to conclude that the accused could not re- litigate his prior conviction~at trial.) In particular, the Court of Appeal relied on a statement in Toronto (City) v. C.U.P.E., para.43, that the focus of abuse of process is less on the interest of parties and unfairness to a party and more on the integrity of judicial decision making: A.R. I, p. 191 (para.100), para.30, supra. From the discussion in Toronto (City) v. C.U.P.E. and s. 22. 1 of the Ontario Evidence Act the B.C. Court of Appeal extracted the following two principals for criminal law:

1. a prior conviction is admissible as prima facie evidence that an accused was convicted previously of a crime; that evidence can be rebutted;

2. at the admissibility stage in a similar fact inquiry, rebuttal of the prima facie evidence must not constitute an abuse of the process of the court: Reasons atA.R. I, p. 192 (para.102).

Section 22.1 (1) of the Ontario Evidence Act, R.S.0 1990 Chapter E.23 states: Proof of conviction or discharge Proof that a person has been convicted or discharged anywhere in Canada of a crime is proof, in the absence of evidence to the contrary, that the crime was committed by the person, if, (a) no appeal of the conviction or discharge was taken and the time for an appeal has expired; or (b) an appeal of the conviction or discharge was taken but was dismissed or abandoned and no further appeal is available. 1995, c. 6, s. 6 (3). 79. The B.C. Court of Appeal's analysis incorporated a principle from administrativelcivil law into criminal law without considering ss. 7 and ?I (d) of the Charter of Rights and the inter-relationship between a similar fact voir dire and the trial proper.

80. The Court of Appeal's tainted analysis led it to conclude that if the Appellant had attempted to directly challenge his prior conviction on the voir dire the trial judge could have rejected it as an abuse of process.

81. In sum, the Appellant submits that the doctrine of abuse of process cannot be invoked to prevent an accused from challenging his prior conviction on a voir dire to introduce similar fact evidence or on the trial proper.

G. Fourth Error - Failing to Recognize Appellant's Indirect Challenge 82. The Court of Appeal also erred in concluding that even if the trial judge was wrong to rely on issue estoppel on the voir dire it was of "no consequence" because the Appellant had not challenged his conviction by testifying: A.R. I, p. 189 (para.94). The Court's analysis suggests there was a burden on the Appellant to testify, which effectively undermines the presumption of innocence: R. v. Reynolds (2003) 172 C.C.C. (3d) 559 (O.C.A.), at paras.13-19. The Court overlooked the fact that on the voir dire the Defence mounted a strong indirect attack against the conviction through the cross-examination of Crown witnesses, the difference in appearance between Matsutani's description and the 1993 arrest photo of the Appellant, and final submissions. How an accused decides to challenge a conviction is his prerogative.

H. Fifth Error - Failing To Recognize Errors in Trial Judge's Analysis 83. The B.C. Court of Appeal's analysis failed to recognize that the trial judge's decision to invoke issue estoppel on the voir dire tainted the manner in which she (i) assessed prejudice (moral and reasoning), and (ii) balanced the probative value of the proposed evidence against its prejudicial effect. Both assessments go to the fairness of the trial. Assessinq Reasonina Preiudice 84. The trial judge's finding that there was "no appreciable risk of reasoning prejudice" (set out in para.22, supra) is re-stated here for convenience:

1891 The concept of reasoning prejudice is founded on the potential distraction of the trier of fact from the offence charged and the potential for the undue consumption of time. I find that there is no appreciable risk of reasoning prejudice in this case. The similar fact evidence alleged is in relation to an incident that has already given rise to a charge of sexual assault against this accused that has been proven beyond a reasonable doubt to have occurred. He is not entitled, in my view, to be re-tried in relation to that alleqation in the context of these proceedinqs. To do so would be contrarv to law and unduly time consuming and potentially distracting to the trier of fact. All that is required in this case is to focus on the similarities or lack thereof in relation to each event: A.R. I, p.37. [emphasis added]

Assessinq Moral Preiudice 85. The trial judge's finding that "there was no significant risk of moral prejudice" was similarly based, in large part, on her view that there was "...cogent evidence linking the accused with the evidence of the similar act": A.R. I p.37 (para.87). The "cogent evidence" was the prior conviction.

86. The trial judge's two assessments were marred by her erroneous view of the law that the Appellant was not entitled to challenge his prior conviction on the voir dire. As a consequence of that error, the trial judge failed to consider three relevant factors:

the extent to which the similar fact evidence may support an inference of guilt based solely on bad character: Handy, at para.139; R. v. L.(B), (1997), 116 C.C.C. (3d) 481 (O.C.A.), at paras.24, 50; R v. Luciano, [2011] O.J. No. 399 (C.A.), at para.233; whether the Crown can prove its point with less prejudicial evidence: Handy, at para.83; and the accused's ability to respond to the similar fact evidence: Handy, at para.146. 87. All three factors relate to the Appellant's prior conviction being filed as part of the similar fact evidence. It is highly unusual for a fact-finder on the trial proper to know of an accused's prior conviction before the Crown has closed its case. However that is what occurred in the case at Bar when the trial judge admitted the similar fact evidence. A conviction for similar conduct carries significant potential "...to support an inference of guilt based solely on bad character". As Binnie J. stated in Handy:

(a) Moral Prejudice

[I391 It is frequently mentioned that "prejudice" in this context is not the risk of conviction. It is, more properly, the risk of an unfocussed trial and a wrongful conviction. The forbidden chain of reasoning is to infer guilt from general disposition or propensity. The evidence, if believed, shows that an accused has discreditable tendencies. In the end, the verdict may be based on prejudice rather than proof, thereby undermining the presumption of innocence enshrined in ss. 7 and 11 (d) of the Canadian Charter of Rights and Freedoms.

88. Attempting to satisfy the Arp (stage 2 evidentiary link) through the eye-witness identification evidence of the Crown witnesses would have been far less prejudicial than filing a record of the Appellant's prior conviction. At the same time it would have provided the accused with a fair opportunity to respond. Challenging a prior conviction from a jury trial is an insurmountable obstacle on a voir dire and trial proper. As Binnie J. stated in Handy, at para.146:

(b) Reasoning Prejudice

[I461 Further, there is a risk, evident in this case, that where the "similar facts" are denied by the accused, the court will be caught in a conflict between seeking to admit what appears to be cogent evidence bearing on a material issue and the need to avoid unfairness to the right of the accused to respond. The accused has a limited opportunity to respond ...

89. The trial judge erred in not considering these factors. She closed the door to a proper analysis of moral and reasoning prejudice because she erroneously concluded the Appellant was not entitled to challenge his prior conviction on the voir dire. Balancina Probative Value And Preiudicial Effects 90. The trial judge's analysis of prejudice had an obvious impact on the way she balanced the probative value of the similar fact evidence against its prejudicial effects. If a proper analysis had been done, she might have assessed the reliability of the eyewitness identification evidence under the second stage of Arp (evidentiary link), and reached a different conclusion on the voir dire. Without the prior conviction, the identification evidence was problematic: see paras.13-18, supra. She chose not to assess the identification evidence because of the "finality" of the prior conviction.

91. Given the highly contextual nature of a similar fact inquiry and a trial judge's significant discretion in balancing the relevant factors, it would be inappropriate for an appellate court to weigh, for the first time on appeal, the identification evidence to determine if it met the stage #2 Arp test for admissibility. An accused is entitled to have a trial judge make those determinations, especially where (as in the case at Bar) it can lead to a conviction and indeterminate sentence.

1. Conclusion

92. There are sound policy reasons for excluding a prior conviction from a similar fact inquiry regardless of whether the trial is by judge alone or judge and jury. A prior conviction can distort the inquiry and cause undue prejudice to an accused. In the alternative, if a prior conviction is admissible, an accused must have the right to challenge or contest its validity either directly (through testifying) or indirectly (through cross-examining witnesses and final submissions). The doctrines of issue estoppel and abuse of process cannot trump an accused's ss. 7 and 11 (d) Charfer rights to full answer and defence, the presumption of innocence and procedural fairness. These principles apply throughout the criminal trial. They are particularly important during a similar fact voir dire where the admissibility of the proferred evidence can have a conclusive effect on the verdict. The failure to respect these principles in the case at Bar is significant, legal error. It goes to the core of the B.C. Court of Appeal's decision to uphold the trial judge's Ruling on the voir dire (to admit the Appellant's prior conviction as conclusive and binding evidence), and requires a new trial. PART IV SUBMISSIONS RE COSTS

93. The Appellant s not seeking any order for costs

PART V ORDER SOUGHT

94. That the Appeal be allowed, the conviction set aside and a new trial ordered.

Respectfully Submitted this 26'h day of April, 201 1.

G.D. McKinnon, Q.C. Counsel for the Appellant PART VI TABLE OF AUTHORITIES PARAS. Enlen v.The Queen, [I9791 1 S.C.R. 926 49 Toronto (City) v. Canadian Union of Public Employees (C.U.P. E.), Local 79, [2003] 3 S.C.R 77 Bradford & Bingley Building Society v. Seddon, [I9991 1 W.L.R. 1482 (C.A.) 75 British Columbia (Attorney General) v. Malik 2011 SCC 18 R. v. Arp, [I9981 3 S.C.R. 339 R. v. Bjelland, [2009] 2 S.C.R. 651 R. v. B.T.J. (2006), 213 C.C.C. (3d) 235 (O.C.A.) R.v. Dubois, [I9851 2 S.C.R. 350 R. v. Duhamel, [I9841 2 S.C.R. 555 R. v. Ford(2000), 145 C.C.C. (3d) 336 (O.C.A.) R. V. Handy, [2002] 2 S.C.R. 908

R. V. Harrer, [I9951 3 S.C.R. 562 R. v. Lyons, [I9871 2 S.C.R. 309 R. v Luciano, [201 I]O.J. No. 399 (C.A.) 86 R. v. L.B. (1997), 116 C.C.C. (3d) 481 (O.C.A.) 46 R. v. M.B., [2011] O.J. No. 428 (C.A.) 62,66 R. v. M.B., [2008] O.J. No. 2358 (Ont. Sp. Ct.) (Similar Fact Ruling) 63 R. v. M.B., [2008] O.J. No. 2521 (Ont. Sp. Ct.) (Reasons for Judgment) 64 R. v. Mahalingan, [2008] 3 S.C.R. 316 34,52 R. v. Oakes, [I9861 1 S.C.R. 103 5 1 R. v. Penfing (1995), 127 A.L.R. 99 R. v. Rodgers, [2006] 1 S.C.R. 554 R. v. Reynolds (2003) 172 C.C.C. (3d) 559 (O.C.A.) R. v. Rose, [I9981 3 S.C.R. 262 R.v. Seaboyer, [I9991 2 S.C.R. 577 R. v. Stinchcornbe, 11 9911 3 S.C.R. 326 57

R. V. W.B.C. (2000), 142 C.C.C. (3d) 490 (O.C.A.)

R. V. W.B.C. [2001] 1 S.C.R. 530 R. v Whyte, [I9981 2 S.C.R. 3 R. v. Verney (1994), 87 C.C.C. (3d) 363 (O.C.A.) 35

PART VII STATUTES CITED

Section 22.1 (1) of the Ontario Evidence Act, R.S.0 1990 Chapter E.23 states:

Proof of conviction or discharge

Proof that a person has been convicted or discharged anywhere in Canada of a crime is proof, in the absence of evidence to the contrary, that the crime was committed by the person, if, (a) no appeal of the conviction or discharge was taken and the time for an appeal has expired; or (b) an appeal of the conviction or discharge was taken but was dismissed or abandoned and no further appeal is available. 1995, c. 6, s. 6 (3).