SCC No. 33694
IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)
BETWEEN:
LARRY WAYNE JESSE APPELLANT (Appellant)
AND:
HER MAJESTY THE QUEEN
RESPONDENT (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in this case directing that the identity of the complainant(s) and any information that could disclose their identity not be published in any document or broadcast in any way pursuant to Section 486.4(1) of the Criminal Code
RESPONDENT'S FACTUM
Solicitor for the Appel/ant: Ottawa Agents for the Solicitor for the Appel/ant: GIL D. McKINNON, Q.C. Barrister & Solicitor HENRY S. BROWN, Q.C. 1500 - 701 West Georgia Street Gowling Lafleur Henderson LLP Vancouver, B.C. V7Y 1 C6 266 - 160 Elgin Street Tel: (604) 601-5616 PO Box 466, Stn "0" Fax: (604) 601-5617 Ottawa, Ontario K1P 1C3 E-mail: [email protected] Tel: (613) 233-1781 Fax: (613)788-3433 E-mail: [email protected] Solicitors for the Respondent:
JENNIFER DUNCAN Ottawa Agents for the Solicitors for the ELIZABETH A. CAMPBELL Respondent: Ministry of Attorney General Criminal Appeals ROBERT E. HOUSTON, Q.C. 6th Floor, 865 Hornby Street Burke-Robertson Vancouver, B.C. V6Z 2G3 70 Gloucester Street Tel: (604) 660-1126 Ottawa, Ontario K2P OA2 Fax: (604) 660-1133 Tel: (613) 236-9665 E-mail: [email protected] Fax: (613) 235-4430 Elizabeth.Campbell@ gov.bc.ca E-mail: [email protected] TABLE OF CONTENTS
PAGE PART I ...... 1 A. Overview ...... 1 B. The Evidence ...... 4 i) Chelsea S ...... 4 ii) Gunnar B ...... 6 iii) The complainant J.M ...... 7 iv) Randy B ...... 7 v) Police involvement...... 8 vi) The similar fact voir dire ...... 8 vii) The positions of counsel ...... 10 viii) The Reasons on the voir dire ...... 10 ix) The Appellant's evidence at triaL ...... 12 x) The Reasons for Judgment at trial...... 13 xi) The Court of Appeal for British Columbia ...... 14
PART II ...... 16 RESPONDENT'S POSITION ON ISSUES ON APPEAL ...... 16
PART III ...... 17 ARGUMENT ...' ...... 17 A. Introduction ...... 17 B. The Admissibility of Similar Fact Evidence ...... 17 C. Probative value versus prejudicial effect...... 21 D. The similar fact voir dire ...... 26 E. Abuse of process and the principle offinality in litigation ...... 29 F. Application to the judgments below ...... 34 G. Conclusion ...... 36
PART IV ...... 38 COSTS ...... 38
PART V ...... 38 ORDER SOUGHT ...... 38
PART VI ...... 39 TABLE OF AUTHORITIES ...... 39
PART VII ...... 41 STATUTORY PROVISIONS ...... 41 1
PART I
A. Overview
1. This appeal engages the interplay between the institutional value of judicial finality in litigation and the admissibility of a disputed, but never appealed, prior conviction as similar fact evidence. The Appellant effectively seeks the creation of a new category of similar fact evidence, the denied prior conviction, which is either inadmissible because it is too prejudicial or in the alternative must be proven again beyond a reasonable doubt as a pre-requisite to its admissibility. The Respondent submits this would constitute a remarkable change to the law governing the admissibility of similar fact evidence. Proven prior conduct, with its corresponding high probative value, would be subjected to a more rigorous standard of admissibility than unproven allegations.
2. The Appellant was charged with one count of sexual assault of J.M. on February 19, 2005 at Winfield, a small community in the Okanagan. The actus reus of the sexual assault was unusual. It consisted of the insertion of a cork into J.M.'s vagina while she was unconscious.
3. The Appellant was tried by Madam Justice Arnold-Bailey, sitting without a jury, in B.C. Supreme Court. On the basis of the facts the trial judge accepted, there were two possible perpetrators of the sexual assault: the Appellant and a man named Randy, whose advanced state of intoxication made him an unlikely candidate for having inserted the cork into J.M.'s vagina.
4. To prove the identity of the offender beyond a reasonable doubt, the Crown applied to lead similar fact evidence concerning the Appellant's 1995 conviction for sexual assault resulting from the insertion of two compacted plastic shopping bags into the vagina of an incapacitated woman. The Appellant was sentenced to seven years imprisonment for that offence and a companion count of robbery. The verdict was not appealed. 2
5. In the proceedings giving rise to this appeal, the Appellant vigorously opposed the admission of his prior conviction as similar fact evidence and a lengthy voir dire ensued. The Crown called several witnesses from the earlier trial (though not the complainant as she had passed away) and demonstrated fingerprints taken from the Appellant following his arrest for the earlier sexual assault matched the fingerprints taken following his arrest in 2005. The defence cross-examined the witnesses extensively. The Appellant did not testify.
6. The trial judge admitted the prior conviction as similar fact evidence on the issue of the identity of J.M.'s assailant. She was satisfied the circumstances of the two occurrences were sufficiently similar for her to conclude, on a balance of probabilities, they were likely the work of one person, in accordance with the first part of the test for admissibility of similar fact evidence to prove identity in R. v. Arp, [1998] 3 S.C.R. 339 at para. 48 [Appellant's Book of Authorities, Tab 5]. The trial judge was also satisfied the prior conviction was proof on a balance of probabilities that the Appellant was the assailant and was thus linked to the prior acts. This latter finding exceeded the requirement in Arp that there be some evidence beyond mere opportunity of a link between the accused and the prior acts: Arp, supra, paras. 53-57.
7. Despite the fact that it was a judge alone trial, the Crown recalled the similar fact evidence during the trial proper. The defence again tested the evidence through cross examination and the Appellant testified. He admitted he had been convicted of the sexual assault of J.S. but denied having committed that offence. He also denied sexually assaulting J.M. The Appellant was convicted of sexual assault of J.M. and sentenced to an indeterminate sentence as a dangerous offender.
8. The Appellant maintains the B.C. Court of Appeal erred in upholding the trial judge's decision to permit the Crown to rely on his prior conviction to link him to the underlying prior conduct. He argues the conviction was inadmissible because it was disputed (notwithstanding that he had never appealed it) and because it was prejudicial. His alternative argument is that an accused should have the right to challenge a prior conviction at the voir dire stage. 3
9. The Respondent submits the B.C. Court of Appeal was correct in finding the prior conviction was admissible to link the Appellant to the prior conduct. The conviction was strong evidence of a link between the Appellant and the prior conduct, in addition to the evidence of the witnesses called in the voir dire. The Appellant argues the admission of his prior conviction operated unfairly against him and impaired his right to full answer and defence. The Respondent acknowledges it operated to his detriment, as it assisted the Crown in proving its case, but submits the trial judge was correct in finding it was not so prejudicial as to merit its exclusion in light of its high probative value on the issue of identity. This is a finding that attracts significant appellate deference. The trial judge did not misuse the evidence to find the Appellant had a propensity to commit sexual assault; rather, she used the similar fact evidence to satisfy herself beyond a reasonable doubt that the Appellant, one of two men who could have committed this highly unusual sexual assault, was the perpetrator. The admission of similar fact evidence for this purpose is precisely what was contemplated by this Court's decision in Arp, supra.
10. The Respondent further submits the Appellant was not hampered in his efforts to challenge the admissibility of the similar fact evidence or the weight to be accorded to it. Defence counsel extensively cross-examined the eyewitnesses to the offence, both at the voir dire and the trial, in an effort to cast doubt on the prior conviction and the similarities between the two occurrences. The B.C. Court of Appeal upheld the trial judge's finding, after the conclusion of the voir dire, that the Crown could rely on the prior conviction and the Appellant was not entitled to challenge it at the similar fact admissibility stage, though he could at trial. While the trial judge relied on issue estoppel in making the latter observation, the B.C. Court of Appeal held that abuse of process was the legal impediment, per Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 see 63 (hereafter Toronto (City) v. C.U.P.E.). [A.B.A. Tab 2].
11. A strict application of the doctrine of abuse of process, rooted as it is in a concern for judicial economy and a desire to avoid relitigation of finally decided issues, might well have led to the conclusion that the Appellant could not challenge or deny his prior conviction at all. In this case, however, the B.C. Court of Appeal upheld the trial judge's 4 decision to permit the Appellant to challenge his prior conviction by testifying and cross examining the similar fact witnesses in the context of the trial proper. As a result, the Respondent submits the Appellant's trial was a substantively and procedurally fair one.
B. The evidence
12. The Respondent will provide a more detailed summary of the evidence than the one set out in the Appellant's factum. The summary is drawn from the trial judge's reasons at conviction in A. R. Vol. I.
i) Chelsea S.
13. Chelsea S. and the complainant J.M. were friends. Chelsea was acquainted with the Appellant, who worked with her boyfriend Gunnar. Neither Chelsea nor Gunnar knew the Appellant well enough for him to have free access to their home. On February 18, 2005, Chelsea and Gunnar had people over for drinks, including Chelsea's father (who lived next door), J.M., Gunnar's brother Randy and a couple of neighbours. One of the guests had a bottle of wine and Chelsea recalled there was a cork associated with it [A.R., I, p. 91, para. 38]. Gunnar picked the Appellant up at a nearby pub and brought him back to the house [po 90, para. 36]. Everyone sat around talking, drinking alcohol and listening to music [po 91, para. 38]. Several marijuana cigarettes were shared [po 93, para. 41]. Chelsea described J.M. as a "10" in terms of her level of intoxication. She estimated Gunnar's level of intoxication as much lower than J.M.'s [po 92, para. 39]. Chelsea did not have a sense of the Appellant's level of sobriety as she did not spend any time with him or talk to him over the course of the evening. While the Appellant sat on the same couch as J.M., Chelsea said they were not paying any attention to each other [pp. 92-93, para. 40].
14. Randy was very intoxicated and passed out on a love seat before midnight. About half an hour later J.M. also passed out. Chelsea helped J.M. onto a makeshift bed on the dining room floor. Chelsea said Randy was passed out on the love seat until the police attended [po 93, para. 42]. 5
15. J.M. was wearing jeans, a tank top and a long black sweater when Chelsea put her to bed. J.M. had urinated in her jeans but was still wearing them. Chelsea gave J.M. a pillow and a duvet, which J.M. wrapped around herself [po 93, para. 43].
16. Chelsea said the last people to leave were the Appellant and then her father, at about 12 or 12:30 a.m. There was talk, in the Appellant's presence, about getting a drink at the bar before last call, but the Appellant said he was leaving. He declined Gunnar's offer of a ride home. About five minutes after the Appellant left, Chelsea and Gunnar went to find him, leaving Randy and J.M. passed out in the house [pp. 93-94, paras. 44, 45]. The route was circular and took about five to ten minutes to drive. They did not see him and went back home. They were away from home a maximum of 15 minutes [pp. 93, 97, paras. 45, 54].
17. Upon arriving back at the house, Chelsea found the door locked. She did not think they locked it on their way out. She panicked, banged on the door and hit the outside glass pane hard enough to break it. A minute later the Appellant came to the door, unlocked it, rushed past her and Gunnar and ran away. Nothing was said by anyone. It happened very quickly [pp. 94, 99, paras. 46,60].
18. Once inside the house, Chelsea noticed J.M.'s pants were beside her and "almost inside out, in a bunch". J.M. was closer to the bathroom from where Chelsea had put her to bed. Scattered around J.M. was an electric tooth brush, a hair brush with a 5-6 inch handle and a regular toothbrush. Those items were normally kept in the bathroom [po 95, para. 49]. Randy was in the same position as when he first fell asleep, "out of it" and "drooling drunk", not awake [po 95, para. 47]. Chelsea tried to wake J.M. [po 95, para. 48]. Gunnar went out to find the Appellant [po 95, para. 50].
19. Chelsea called the police. It took Constable Ross of the Kelowna R.C.M.P. about 45 minutes to arrive. During that time Chelsea got J.M. on to the couch. J.M. was awake but still "out of it". When Constable Ross arrived, Randy woke up [po 95, para. 50].
20. Some time after the Appellant left the house the second time, Chelsea received a call on the cell phone she shared with Gunnar. The name "Larry" came up on the 6 display. The Appellant's name was programmed into the phone because he worked with Gunnar. She answered the call but the caller said nothing. Chelsea told the caller, whom she assumed to be the Appellant, that she had called police and he was "busted" for what he did [po 96, para. 52].
21. The next morning, Chelsea told J.M. what had happened the night before and J.M. said she would go to the hospital. Chelsea and Gunnar dropped J.M. off at her mother's house, then received a call asking Chelsea to return there. Chelsea went into the bathroom where J.M. was trying to extract something from her body. J.M. produced a cork she had pulled out of herself. Chelsea put the cork in a plastic bag and gave it to police [po 96, para. 51].
ii) Gunnar B.
22. The trial judge found Gunnar's testimony confirmed much of what Chelsea said. He had drinks with the Appellant at a pub before bringing him back to the house on the evening of February 18, 2005. The Appellant sat on the couch in the living room for most of the time, sitting next to J.M. until J.M. was put to bed [A.R., I, pp. 103-104, paras. 72-75]. Randy was very drunk and passed out on the love seat around 10 p.m. J.M. was about as drunk as Randy. Chelsea put J.M. on a make-shift bed on the dining room floor. The Appellant said he was going home. After the Appellant left Gunnar thought he would see if the Appellant needed a ride. He and Chelsea drove around looking for the Appellant but did not find him [po 104, para. 76].
23. On their return home, the door to their house was locked, and Chelsea banged on it. The Appellant came to the door, opened it, brushed by them and "took off." Gunnar thought the Appellant appeared startled. There was no conversation. Gunnar went into the house and saw J.M. on the floor with no pants on. He grabbed his baseball bat and took his dog to look for the Appellant, but did not find him [po 105, para. 77]. Gunnar recalled his electric toothbrush was lying beside J.M. It was usually kept in a jar on the bathroom counter [po 106, para. 78]. 7
iii) The complainant J.M.
24. J.M. was 24 when she testified at trial. She is a diabetic and had quite a lot to drink at Chelsea's house. She did not remember passing out or where she passed out [A.R., I, p. 100, para. 64]. Prior to passing out she had no pain or problems with her vaginal area or her head. When she awakened on the floor in the dining room, she wondered why she had no pants on. She was crying and thirsty, with a pounding headache and a large bump on the back of her head. Her vaginal area was sore and she felt like something was pressing into her bladder. It was "like something was inside of me stuck and it would not come out" [po 101, para. 66]. J.M. did not know what time it was. Randy was passed out on the couch and Chelsea and Gunnar were asleep in the bedroom. She recalled Chelsea telling her police had been there but J.M. had no memory of this [pp. 101-102, para. 67]. Chelsea and Gunnar drove J.M. to her mother's place the next morning. She still had pain in her vagina and described she pushed on it by "peeing" and the cork came out. Her vagina was sore for a few days, as was her head [po 102, para. 68].
iv) Randy B.
25. Randy had known J.M. since they were very young. He knew the Appellant through work [A.R., I, p. 108, para. 85]. Randy drank at least one third of a 40 ounce bottle of rum at Gunnar and Chelsea's and admitted he was highly intoxicated. He went to sleep on the couch in the living room after they ran out of alcohol [po 109, para. 87]. The next thing he recalled was the attendance of police [pp. 109-110, para. 88]. When he woke up again the next morning he recalled J.M. complaining about stomach pain [po 100, para. 89]. Randy thought he got up once in the night to go to the bathroom. The house was quiet and he did not see J.M. He had no sexual interest in J.M. and denied touching her or putting anything in her vagina [po 110, para. 90]. He admitted he has a problem with alcohol, including previous alcoholic blackouts, and did not really recall what went on that night [pp. 110, 112, para. 91,95]. 8
v) Police involvement
26. Constable Ross was dispatched to the B. residence in Winfield in response to a 911 call about a possible sexual assault. He arrived at 1 :40 a.m. on February 19, 2005. He observed a single pane of broken glass in the window of the door. He saw Randy lying on a love seat and J.M. passed out or asleep on the couch. It took him over a minute to rouse her, using pain stimuli to her ear lobe [A.R., I, p. 115, para. 106]. He was of the view J.M. did not think an assault or anything else had taken place without her knowledge. J.M. said she took her own pants off [p.117, para. 111]. She refused medical attention and did not have any visible injuries. She seemed to want to lie down and go back to sleep. Constable Ross asked Chelsea to keep an eye on J.M. and gave her his card [po 116, para. 107]. Randy was obnoxious and extremely intoxicated. He leaned against a wall, swayed and wobbled and did not appear to be able to walk very well [po 116, para. 108]. Gunnar did not appear to be intoxicated [po 117, para. 109]. Chelsea was coherent [po 116, para. 107].
27. Constable Vardy was dispatched to J.M.'s mother's house at 10:35 a.m. on February 19, 2005. J.M., Chelsea and J.M.'s mother were upset. He took possession of a cork in a plastic baggie [A.R., pp. 117-118, paras. 113-114]. He went to the hospital and observed J.M. to be groggy, as if hung over, but she was fairly well collected, if a little upset. He did not submit the cork for DNA analysis. The lab did not find any semen after examining vaginal swabs taken from J.M. [po 118, para. 114].
vi) The similar fact voir dire
28. The Respondent's summary of the evidence from the similar fact voir dire is based on the voir dire ruling in A.R., I, pp. 3-48. The Crown called evidence from a number of witnesses who had testified at the Appellant's 1995 trial for sexual assault, although the victim J.S. was deceased.
29. On January 26, 1993 Martin Matsutani was at a bar in downtown Vancouver with friends. He parked near the Bay department store loading dock. Around 9 p.m. he returned to his car. He saw two people engaged in a sexual act and went back to the bar for a few minutes so as not to disturb them. The woman was naked, lying on her 9 stomach on the loading dock. The man was behind her, kneeling between her legs. It appeared to Mr. Matsutani that the man was inserting something into her vagina as his arm was going forwards and backwards at a ninety degree angle. The woman was very still [A.R. I, pp. 8-9, paras. 17-19].
30. After going back to the bar and telling his friends (including Peter Boudewyn, Darryl Fox and Theresa Steele) what he had seen, Mr. Matsutani returned to the loading dock with them. The woman was then alone, naked and appeared terrified. Later that evening, Mr. Matsutani saw a man in police custody. He said it was the same man he had seen earlier on the loading dock between the woman's legs [po 10, para. 20].
31. Darryl Fox saw a man leaving the loading dock area, and followed him for a few blocks and ultimately into the SkyTrain station. Peter Boudewyn called police with a description of the man Mr. Fox was following. When the police attended they arrested the man Mr. Fox had been following [pp. 10-11, 13, paras. 21-23, 29]. There was hardly any traffic on the street that night and no other pedestrians other than in the SkyTrain station, according to Theresa Steele [po 12, paras. 24-26]. Sergeant Herrmann of the Vancouver Police Department arrested a male, later identified as the Appellant, at the Granville SkyTrain station [po 14, para. 32].
32. Constable Raila dealt with the woman on the loading dock. She was incoherent in terms of sobriety, unable to speak properly or comprehend what she was being asked. She was taken to hospital for a sexual assault examination [po 15, para. 35].
33. Gordon Matei, Crown counsel at the 1995 trial, testified on the similar fact voir dire. He said the Appellant was found guilty by a jury of sexual assault and robbery and received seven years imprisonment. He tendered a certified true copy of the Indictment from Supreme Court [po 17, para. 39]. Mr. Matei recalled the prosecution involved a woman who was sexually assaulted on the loading dock of the Hudson's Bay and who had a plastic bag of some sort inserted into her vagina. No fingerprints of value were found on the bags and there was no DNA evidence. Mr. Matei recalled the Appellant testified and denied any involvement in the offences [po 18, paras. 40-41]. 10
34. The Crown called Dr. Lise Loubert as a witness on the voir dire. Dr. Loubert was found to be qualified to provide expert opinion evidence in the areas of general practice and as a sexual assault examiner. In the early morning hours of January 27, 1993 she examined a shaken and crying woman known as J.S. J.S. was covered in dirt and had a laceration over her right eyebrow as well as bruises and scrapes over parts of her body. Notwithstanding J.S.'s emotional state, she was able to interact with Dr. Loubert and cooperate with the examination [po 18, paras 43-44]. Dr. Loubert examined J.S.'s vagina, noting bruising and scraping. She could see foreign material in the vagina and used a ring forceps to remove two large compacted plastic shopping bags. Once the bags were removed she saw more abrasions and marks on the walls of the vagina [po 20-21, para. 45]. Dr. Loubert also testified that in the 142 examinations of alleged sexual assault victims she had conducted in Vancouver over the 15 years prior to 2006, J.S.'s case was the only one in which she found a foreign object in a vagina [po 34, para. 78].
vii) The positions of counsel
35. The Crown sought to rely on the circumstances of the sexual assault on J.S., established by the witnesses on the voir dire, as being sufficiently similar to the offence the Appellant was being tried for to meet the test for admission as similar fact evidence. The Crown also sought to rely on the Appellant's 1995 conviction as proof he was the perpetrator of the sexual assault on J.S., in addition to the evidence of the eyewitnesses, in particular Mr. Matsutani. The defence opposed the admission of the evidence, arguing the circumstances of the earlier sexual assault were not sufficiently similar to the ones in the present offence; the two matters were separated by 12 years; the prejudicial effect of the 1993 incident outweighed its probative value; and the prior conviction should not be admitted because of the "rule" in Hollington v. F. Hewthorn and Company, Limited, [1943] 1 K.S. 587 [po 4, paras. 4-6]. viii) The Reasons on the voir dire
36. The trial judge extensively reviewed this Court's jurisprudence on similar fact evidence, most notably Arp, supra [AS.A Tab 5] and R. v. Handy, [2002] 2 S.C.R. 908 [AS.A Tab 11] [AR., I, pp. 20-28, paras 48-65]. She found the prior offence and 11 the one before her were very similar. They both involved highly distinctive sexual assaults on women who were vulnerable and unable to take care of themselves or communicate at the material time [po 33, para. 76]. The two sexual assaults involved the insertion of common items into the vaginas of incapacitated women, probably by use of a blunt instrument [po 34, para. 77]. The trial judge noted Dr. Loubert's evidence that in 142 examinations of alleged assault victims over 15 years, J.S.'s case was the only one in which a foreign object had been inserted into the vagina [po 34, para. 78].
37. The trial Judge found the Crown had a strong circumstantial case against the Appellant for J.M.'s assault, as he was seen leaving the house where J.M. had passed out at a time when the cork was in all likelihood inserted and the only other male in the house was passed out [po 36, para. 86]. It was of a generally similar character to the 1993 assault so there was no significant risk of moral prejudice [po 37, para. 88]. As to reasoning prejudice, founded on the potential distraction of the trier of fact, the trial judge found no appreciable risk [po 37, para. 89].
38. Having found the two occurrences to be sufficiently similar, the trial judge turned to the evidence that linked the Appellant to the earlier offence. She found on a balance of probabilities that the Appellant was the same person convicted of the assault on J.S. Several of the witnesses from the original trial identified him but more importantly, the fingerprints from his earlier arrest matched his fingerprints from his 2005 arrest for the assault of J.M. [po 38, para. 92]. The trial judge concluded:
[95] I 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 burden of proof to a balance of probabilities that he was its likely perpetrator. I find that I am unable to come to any other conclusion given that the conviction stands and, by definition, constitutes an uncontroverted finding and conclusive proof beyond 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.
[98] I 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 12
subsequent finding of wrongful conviction. The matter becomes res judicata and the issue is estopped in relation to further proceedings.
39. The trial judge concluded the Appellant could not challenge his conviction in "these proceedings". Upon hearing the oral reasons at the conclusion of the voir dire, defence counsel clarified that "these proceedings" meant the voir dire. The trial judge agreed and said the Appellant could take the stand at trial in the trial proper and say whatever he wanted about the previous conviction [po 46, paras 114-117].
ix) The Appellant's evidence at trial
40. The Appellant testified that he worked with Gunnar and Randy for about a year prior to February of 2005. He had met Gunnar's girlfriend Chelsea once [A.R., I, p.125, para. 138]. On the night in question, he phoned Gunnar from a pub as he understood Gunnar's father-in-law had a vehicle for sale. Gunnar came to the pub and the two men consumed some beer before proceeding to Gunnar's house [po 126, para. 139]. The Appellant drank more beer and talked to Gunnar and his father-in-law [po 126, para. 141]. He was introduced to J.M. but did not have any particular dealings with her. He left, declining a ride from Gunnar, who had been drinking. The Appellant walked out to the highway, along the highway and then up the hill to his home. He urinated in a ditch off the highway at one point, out of sight of passing cars [po 127, para. 144]. He denied calling Gunnar that night but did call him on Sunday night about a ride to work. Gunnar told the Appellant the police were looking for him and they would no longer work together [po 127, para. 144].
41. The Appellant admitted he had been convicted in 1995 for sexual assault and never appealed the conviction [po 128, para. 147]. He agreed he heard Chelsea and Gunnar talk about going out somewhere before he left the house. The Appellant also agreed he knew when he left that Randy and J.M. were both passed out, but denied waiting outside until Gunnar and Chelsea drove away so he could re-enter the house [po 131, para. 155]. He denied returning to their house for an innocent purpose. He denied having anything to do with J.M. and denied putting plastic bags in J.S.'s vagina in 1993 [po 131, para. 156]. 13
x) The Reasons for Judgment at trial
42. The trial judge wrote comprehensive reasons for judgment as the Appellant argued not only that the Crown had not proven he inserted the cork into J.M.'s vagina but also that the Crown had not proven an assault occurred or that it was a sexual assault.
43. The trial judge framed the issues to be decided as: whether a sexual assault took place; whether there was proof of a lack of consent; and whether the Appellant was the perpetrator. The last issue required consideration of the weight to be given to the eye witness identification and the similar fact evidence. The trial judge noted the main issue was identification of the person who placed the cork in J.M.'s vagina [A.R., I, p. 82-83, paras. 15-16].
44. The trial judge reviewed the evidence regarding the events of February 19, 2005, the alleged sexual assault of J.M. and the similarities of the similar fact evidence. The Appellant's evidence as to both offences was then extensively reviewed.
45. The trial judge began her analysis by detailing her findings regarding reliability and credibility. She accepted the evidence of Chelsea and Gunnar that they believed it was the Appellant who unlocked the door and brushed by them when they returned to their home to find their door locked and J.M. naked from the waist down [po 133-134, 136, paras. 163, 164, 168]. The trial judge also accepted J.M.'s evidence that she did not insert the cork into her own vagina, she experienced pain from its presence and was shocked to discover it [po 135, para. 167]. The trial judge found it unlikely that Randy could have been the perpetrator [po 137, para. 170].
46. The Appellant's evidence was rejected by the trial judge as neither credible nor reliable. The trial judge found his memory to be detailed as to matters that would assist him and selectively lacking as to matters where a detailed recollection may hurt his credibility. She also noted that, where events did not occur as he said, the Appellant was unable to provide realistic details of the events [po 142, para. 179]. 14
47. Noting that the eye-witness identification by Chelsea and Gunnar of the Appellant leaving their home was critical to this case, the trial judge reviewed authorities on the inherent frailties of eye-witness identification. The trial judge concluded that their evidence did not suffer from the usual frailties as they both knew the Appellant and they recognized him at a time they did not expect to see him. The trial judge rejected the Appellant's evidence that he was not there [pp. 146-147, paras. 188-191]. She concluded that she did not accept the testimony of the Appellant and that his testimony did not raise a reasonable doubt about his presence in the residence when Chelsea and Gunnar returned home [po 148, para. 194].
48. The trial judge found a sexual assault occurred when the cork was inserted into J.M.'s vagina [po 151, para. 201]. J.M. did not consent and was incapable of consenting after she passed out [pp. 152-153, paras. 203-204].
49. The final question was the identification of the perpetrator of the sexual assault. The trial judge articulated the test in R. v. W.(D.), [1991] 1 S.C.R. 742 and noted that she had already outlined why she did not accept the Appellant's evidence and why it did not raise a reasonable doubt as to who inserted the cork into J.M.'s vagina [po 154, para. 208]. She then turned to the third stage of the W.(D.) analysis to assess whether the evidence she accepted proved the Appellant's guilt beyond a reasonable doubt.
50. By this stage, the trial judge had found that there was a very narrow window of time during which J.M. was assaulted and that she was alone with two men during that time: the Appellant and Randy. The trial judge noted that, in her opinion, Randy seemed to have been too intoxicated to have engaged in such an activity. The similar fact evidence then became relevant and was used by the trial judge to elevate the proof that the Appellant was the perpetrator to proof beyond a reasonable doubt [po 158, para. 218].
xi) The Court of Appeal for British Columbia
51. In unanimous Reasons for Judgment written by Chiasson, J.A., the B.C. Court of Appeal dismissed the appeal, upholding the trial judge's decision to admit the similar fact evidence. The Court of Appeal differed only on the legal impediment to the 15
Appellant's challenge to his prior conviction at the voir dire stage, attributing it to abuse of process rather than issue estoppel. 16
PART II
RESPONDENT'S POSITION ON ISSUES ON APPEAL
52. The Respondent submits the B.C. Court of Appeal was correct in upholding the trial judge's conclusions that the Appellant's prior conviction was admissible as similar fact evidence and the Appellant was not entitled to challenge it in the context of the similar fact voir dire. 17
PART III
ARGUMENT
A. Introduction 53. The Respondent will begin with an overview of the principles of admissibility of similar fact evidence before moving on to examine the Appellant's specific complaints about the prejudicial effect of his prior conviction, the nature of a similar fact voir dire and whether the B.C. Court of Appeal was correct in relying on the doctrine of abuse of process as a rationale to bar the Appellant from challenging his prior conviction at the similar fact voir dire.
B. The Admissibility of Similar Fact Evidence
54. Similar fact evidence is presumptively inadmissible because it is evidence of an accused's propensity to commit other bad acts. It may be admissible where its probative value exceeds its prejudicial effect. The burden is on the Crown to establish admissibility.
Handy, supra, at para. 55 [AB.A Tab 11].
55. Similar fact evidence is circumstantial evidence. In contrasting the rule that the Crown must prove the voluntariness of a statement beyond a reasonable doubt, because it may provide conclusive proof of guilt, with the lower burden of proof concerning the admissibility of similar fact evidence, Cory J. said in Arp, supra [A.B.A Tab 5]:
[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 lies in its ability to support, through the objective improbability of coincidence, other inculpatory evidence. 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.
56. At the Appellant's trial, the similar fact evidence did not bear the entire weight of the Crown's case. The trial judge accepted the Appellant was one of two possible 18
perpetrators of the sexual assault of J.M. because he was undeniably present at the party preceding the commission of the offence, aware of the victim's state of intoxication and one of two men who had access to her. The police did not identify him as a suspect because they were stymied in their investigation, culled a database of sexual offenders, found out he had previously been convicted of highly similar bizarre conduct and then arrested him solely on the basis of his prior conviction.
57. Similar fact evidence gains its cogency from the objective improbability of coincidence. In discussing the narrow exception of admissibility of similar fact evidence, Binnie J. observed in Handy, supra [A.B.A. Tab 11]:
[44] The criminal trial is, after all, about the search for the truth as well as fairness to an accused. Thus Lord Herschell, in what is called the second "branch" of Makin, supra, said at p. 65:
On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.
[45] In Makin itself, the death of one small child found buried in the back garden of the accused could conceivably be thought to be from natural or perhaps accidental causes, but when numerous other bodies were later dug up in the same backyard and at previous residences of the accused, the coincidence of so many premature deaths by innocent causes of babies of recent good health defied belief. Coincidence, as an explanation, has its limitations. As it was put in one American case: "The man who wins the lottery once is envied; the one who wins it twice is investigated" (United States v. York, 933 F.2d 1343 (ih Cir. 1991), at p. 1350).
58. A comparison of the circumstances of the sexual assault of J.M. and the Appellant's prior conviction for sexual assault of J.S. defied the objective improbability of coincidence. The Appellant's prior conviction involved the insertion of objects into J.S.'s vagina while she was incapacitated by alcohol. The examining physician, Dr. Loubert, had conducted 142 sexual assault examinations over about 15 years. The only one where she found foreign objects was in the case where the Appellant had been convicted. Subsequently he was at a social gathering, following which J.M. found a foreign object in her vagina, inserted there while she was unconscious. The conduct in 19 question does not fall into the category of a "garden variety" sexual assault. It has highly unusual hallmarks.
59. The leading case on the admissibility of similar fact evidence as proof of identity is Arp, supra [A.B.A. Tab 5]. Justice Cory for the Court described both the improbability based reasoning supported by similar fact evidence and the high degree of similarity required:
[43] ... [W]here identity is at issue in a criminal case and the accused is shown to have committed acts which bear a striking similarity to the alleged crime, the jury is not asked to infer from the accused's habits or disposition that he is the type of person who would commit the crime. Instead, the jury is asked to infer from the degree of distinctiveness or uniqueness that exists between the commission of the crime and the similar act that the accused is the very person who committed the crime. This inference is made possible only if the high degree of similarity between the acts renders the likelihood of coincidence objectively improbable . ... That is, there is always a possibility that by coincidence the perpetrator of the crime and the accused share certain predilections or that the accused may become implicated in crimes for which he is not responsible. However, where the evidence shows a distinct pattern to the acts in question, the possibility that the accused would be repeatedly implicated in strikingly similar offences purely as a matter of coincidence is greatly reduced ....
[44] Because similar fact evidence is admitted on the basis of an objective improbability of coincidence, the evidence necessarily derives its probative value from the degree of similarity between the acts under consideration ....
[45] ... [A] principled approach to the admission of similar fact evidence will in all cases rest on the finding that the accused's involvement in the alleged similar acts or counts is unlikely to be the product of coincidence. This conclusion ensures that the evidence has sufficient probative force to be admitted, and will involve different considerations in different contexts. Where, as here, similar fact evidence is adduced on the issue of identity, there must be a high degree of similarity between the acts for the evidence to be admitted. For example, a unique trademark or signature will automatically render the alleged acts "strikingly similar" and therefore highly probative and admissible. In the same way, a number of significant similarities, taken together, may be such that by their cumulative effect, they warrant the admission of the evidence. [emphasis in original]. 20
60. The Arp test for the admissibility of similar fact evidence has two stages. At the first stage, the trial judge asks whether the similarities are such that it is more likely than not that the acts in question are the work of one person. To put it another way, does the evidence disclose sufficient similarities or a distinct pattern so that the most probable explanation is that the same person committed the acts? This question is determined on a balance of probabilities standard [Arp, supra, para.48].
61. At the second stage, the trial judge determines if there is a link between the similar act and the accused. The applicable standard is not onerous. There need only be "some evidence" that the act in question was committed by the accused [Arp, supra, paras. 53-57]. This requirement was described by the authors Paciocco and Stuesser in the following terms:
Where the judge has determined that the crime charged and the similar act were likely committed by the same person, the judge is then to ask a second question. The judge is to determine whether there is some evidence linking the accused to the similar act. A link between the accused and the similar act is required because, if admitted, the similar act would be used to show that the accused committed the crime charged. If there is no link between the accused and that similar act, how can it be used to connect the accused to the crime charged? This does not mean that the trial judge has to go so far as to decide that the accused is probably the perpetrator of the similar act. Since the ultimate decision whether to use the similar fact evidence is for the trier of fact, at the admission stage the judge need merely be satisfied that there is some evidence upon which a reasonable trier of fact can make a proper finding that the accused committed that similar act. It will be enough if the evidence linking the accused to the similar act establishes more than a "mere possibility" that he committed it.
David M. Paciocco and Lee Stuesser, The Law of Evidence, 4th ed. (Toronto: Irwin Law Inc., 2005) at 73 [RB.A. Tab 23]. R. v. Pickton, 2009 BCCA 300,2009 CarswellBC 3825 at paras. 129-166 [R.B.A. Tab 13]. R. v. Sweitzer, [1982] 1 S.C.R 949 at 954 [RB.A. Tab 19]. R. v. Perrier, [2004] 3 S.C.R 228, 2004 SCC 56 at paras. 23-24 [R.B.A. Tab 12].
62. While acknowledging there may be exceptions, Cory J. in Arp, supra set out this "general rule" for similar fact in identity cases at para. 50(3): 21
... [A]s a general rule if there is such a degree of similarity between the acts that it is likely that they were committed by the same person then the similar fact evidence will ordinarily have sufficient probative force to outweigh its prejudicial effect and may be admitted.
C. Probative value versus prejudicial effect
63. In every case, the admissibility of similar fact evidence depends upon the trial judge's determination, in the exercise of his or her gatekeeper function over the admissibility of evidence, that the probative value of the evidence exceeds its prejudicial effect in respect of the issue or issues for which it is tendered. The determination has three components: an assessment of the probative value; an assessment of its prejudicial effect; and a weighing or balancing of the two together.
64. In assessing the probative value of the evidence, the trial judge must identify the factors that connect or distinguish the acts under consideration, whether charged or uncharged. Binnie J. in Handy, supra provided a non-exhaustive list of factors to assist in that exercise, at para. 82 [AB.A Tab 11]. These factors enable the trial judge and, if the evidence is admitted, the trier of fact, to determine the strength of the inferences available from the evidence. Where the inferences the similar fact evidence supports are highly relevant to the elements of the offence, the similar fact evidence has significant probative value.
65. The strength of the evidence sought to be adduced is also relevant to the assessment of its probative value. In Shearing, supra [R.B.A Tab 17], where the accused denied some of the similar acts which were counts on the Indictment, Binnie J. observed:
[39] As the test of admissibility weighs probative value against prejudice, a question that quickly emerges is whether the Crown is able to lead cogent evidence of the alleged similar acts ...
66. In Handy, supra the Crown applied to adduce evidence that was both extrinsic to the Indictment and denied by the accused. Charron J.A. (as she then was) for the Ontario Court of Appeal in Handy (R. v. H.(J.) (2000), 145 C.C.C. (3d) 177 (Ont.C.A» [R.B.A Tab 7], in considering the strength of the proposed evidence, said: 22
[34] The extent to which the discreditable conduct can be proven has a direct bearing on its probative value. In cases where the accused denies his or her involvement in the prior acts, the issue of proof may be important to the inquiry into its probative value. This is such a case.
[35] Mr. H. denied all of the incidents alleged by Ms. B. The incidents in question formed the subject-matter of pending proceedings before the court and were as yet unproven.
See also Paciocco and Stuesser, The Law of Evidence, supra, at p. 55 [RB.A Tab 23]. R. v. MacCormack (2009), 241 C.C.C. (3d) 516 (Ont.C.A) at para. 64[RB.A Tab 10].
67. Like Handy, supra, the instant appeal involves evidence extrinsic to the Indictment, but a critical difference is that the conduct in question is not an allegation - it was proven beyond a reasonable doubt in another proceeding. The Respondent submits it is thus strong, cogent evidence with a higher probative value than evidence of untried allegations.
68. The prejudicial effect of similar fact evidence refers to the risk of: (1) a jury wrongly convicting on the basis of general propensity or "bad personhood" (moral prejudice); and (2) the jury being confused or distracted by the multiplicity of incidents before them (reasoning prejudice).
Handy, supra, at para. 31 [AB.A Tab 11]. Shearing, supra, at paras. 64-69 [RB.A Tab 17]. R. v. L.B. (1997), 116 C.C.C. (3d) 481 (Ont.C.A), at paras. 22 and 50 [AB.A Tab 15].
69. The trial judge in this case had to deal with one extrinsic incident that was no more heinous than the one the Appellant was being tried for. The prejudicial effect of the evidence was thus significantly attenuated. Nevertheless, the Appellant advances several reasons why it is too prejudicial for the Crown to ever be able to rely on a prior conviction in a similar fact application:
• a trial judge sitting without a jury will be tainted by hearing of the conviction at the similar fact voir dire and will be more likely to convict [AF., para. 42]; • if the trial is by jury, there is a serious risk of moral prejudice if the jury knows of a previous conviction for similar conduct and may engage in the forbidden chain of 23
reasoning from general disposition to guilt, even if properly instructed by the trial judge [AF., para 43]; and • responding to a prior conviction is an insurmountable task [AF., para 44].
70. The Respondent submits that trial judges sitting without juries are routinely entrusted with the duty to examine all the evidence and apply the law. They admit or exclude confessions after voir dires and are still capable of applying the presumption of innocence. To label a category of evidence as too prejudicial for a judge sitting without a jury to hear would require trial judges to recuse themselves after hearing it in a voir dire.
71. In a jury trial, the trial judge acts as a gatekeeper to determine if the evidence carries too high a prejudice in relation to its probative value. If it does, the evidence is excluded. If the evidence is admitted, a proper jury instruction is the remedy. In R. v. Corbett, [1988] 1 S.C.R 670 [RS.A Tab 2], in the context of whether it was proper for the Crown to cross-examine an accused on his criminal record, Dickson C.J. for the majority said, at p. 692:
In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often long and difficult, but the experience of trial judges is that juries do perform their duty according to the law. We should regard with grave suspicion arguments which assert that depriving the jury of all relevant information is preferable to giving them everything, with a careful explanation as to any limitations on the use to which they may put that information. So long as the jury is given a clear instruction as to how it may and how it may not use evidence of prior convictions put to an accused on cross examination, it can be argued that the risk of improper use it outweighed by the much more serious risk of error should the jury be forced to decide the issue in the dark. [emphasis in original]
See also R. v. D(L.E.) [1989] 2 S.C.R. 111 at p. 128 [RS.A Tab 4]. R. v. G.(S.G.), [1997] 2 S.C.R. 716 at paras. 64-65 [RS.A Tab 6].
72. Confessions to police are admitted even if they are on their face conclusive of an accused's guilt, so long as they are not obtained in a manner that violates either the 24
Charier or the law of voluntariness. Details of undercover operations and the resulting confessions to undercover police officers are admitted and frequently contain damning admissions that go beyond a confession to a particular crime. An accused may testify and be cross-examined on his criminal record. On a trial for breach of probation or driving while prohibited it is obvious to the trier of fact that prior criminal conduct was involved. Careful jury instructions, rather than depriving the trier of fact of relevant, probative evidence, provide the remedy to any imbalance in the fairness equation.
73. A prior conviction constitutes stronger, more probative evidence than an allegation of a prior similar act. That strength may make it more difficult for the defence to respond to, but does not make the evidence inadmissible. Responding to evidence of a prior conviction may pose difficulties for the defence, but simply because a piece of evidence operates unfortunately for an accused or makes the defence of a matter more difficult does not render the evidence inadmissible or the trial unfair.
74. The types of similar fact evidence admitted in other cases also refutes the Appellant's blanket claim of irremediable prejudice that flows from a prior conviction. The following cases illustrate it is not unusual or impermissible for the Crown to rely on prior convictions, guilty pleas, or denied unproven conduct as similar fact evidence:
• Shearing, supra [RB.A. Tab 17]: the Indictment charged the accused with a variety of sexual offences against young girls. His defence to two of the counts was denial. The jury was instructed on the use of cross-count similar fact evidence.
• R. v. Fisher (2003), 179 C.C.C. (3d) 168 (Sask.C.A.); application for leave to appeal refused 2004 CarsweliSask 566 [RB.A. Tab 5]: the accused was charged with murder in the course of a sexual assault. The Crown was permitted to lead evidence of circumstances from previous guilty pleas by the accused to sexual assaults to prove he killed the victim in the course of a similar sexual assault.· The remedy for any resulting prejudice was a careful jury instruction [para. 56].
• R. v. James (2006), 213 C.C.C. (3d) 235 (Ont.C.A.); application for leave to appeal refused [2007] S.C.C.A. No. 234 [RB.A. Tab 8]: the accused was charged with first degree murder in the course of committing a sexual assault. The Crown was permitted to lead similar fact evidence stemming from a prior guilty plea to sexual assault where the accused had beaten a woman when she rejected his sexual advances. 25
• R. v. Snow (2004), 190 C.C.C. (3d) 317(Ont.C.A) [RB.A Tab 18]: at the accused's trial for first degree murder the Crown was allowed to lead, as similar fact, evidence of other abductions by the accused in the form of the accused's guilty plea to several of the charges and on the basis of the evidence led at the preliminary inquiry.
• R. v. Ford (2000), 145 C.C.C. (3d) 336 (Ont.C.A) [AB.A Tab 10]: the Crown led evidence of the accused's guilty plea to possession of stolen property to support the Crown's theory of motive. The defence objected. On appeal from conviction, the Ontario Court of appeal observed that absent evidence to the contrary a guilty plea is assumed to be voluntary and informed:
[36] ... It works no injustice on the accused to permit the guilty plea and conviction to be admitted as evidence of the truth of the facts for which they stand at a subsequent criminal trial: see R. v. Duong (T.D.) (1998), 108 O.AC. 378. It remains open to the accused to challenge or explain the previous conviction if he so desires. No challenge or explanation was made in this case.
• R. v. W.B.C. (2000), 142 C.C.C. (3d) 490 (Ont.C.A); aff'd [2001] 1 S.C.R 530 [AB.A Tabs 27 and 28]: the accused's guilty plea to a prior sexual assault was admitted as similar fact evidence. The accused testified and denied his guilt, claiming he pleaded guilty because his lawyer and the Crown had made a deal. His recantation went to the weight to be accorded to the prior admission of guilt, not its admissibility [at para. 61].
• R. v. Blake (2003), 181 C.C.C. (3d) 169 (Ont.C.A); affirmed 2004 SCC 9 [RB.A Tab 1]: the accused's guilty plea and prior conviction for sexual offences against children were admitted as similar fact evidence. A majority of the Ontario Court of Appeal allowed the appeal and ordered a new trial as the decision to admit the evidence pre-dated Handy. Abella J.A, in dissent, commented on the strength of the evidence at para. 17.
• R. v. Rurak, 2006 CarsweliAlta 1243, ABPC 251 [RB.A Tab 15]: the Information, with its endorsements of findings of guilt from a previous trial, was relevant and admissible evidence if the Crown could prove it related to the same person before the court in the current prosecution. It would be relevant evidence of the identity of the person who committed the previous sexual assaults [at para. 10].
• R. v. Olsen (1999), 131 C.C.C. (3d) 355 (Ont.C.A) [RB.A Tab 11]: in a prosecution for the murder of a baby girl, evidence that the girl's father had previously pleaded guilty to aggravated assault of his two month-old son was relevant to the identity of the killer and to intent for murder [paras. 7-17]. 26
• R. v. Corbett, supra, at p. 688 [R.B.A. Tab 3]:
It is the case that apart from its relevance to credibility, evidence of prior convictions would be inadmissible unless it met one of the exceptions to the general exclusion of similar fact evidence. Such evidence does not constitute proof that the accused committed the offence for which he is now being tried: Makin v. Attorney-General for New South Wales [citation omitted], Koufis v. The King [citation omitted]; R. v. Stratton [page reference omitted].
75. The Appellant has not identified any evidentiary barrier to the admission of a prior conviction as similar fact evidence, either generally or specifically to link the accused to the prior conduct, where it is probative of an issue at trial. To deprive the trier of fact of relevant and probative evidence because it resulted in a conviction, making it by necessary implication strong and probative evidence, is counterintuitive, counterproductive and an artificial barrier to the search for the truth.
D. The similar fact voir dire
76. The admissibility of similar fact evidence is determined by the trial judge in his or her gatekeeper role. If admitted, it is up to the trier of fact, whether judge alone or jury, to use the evidence for the purpose(s) it is admitted. While this Court has set out the law surrounding the admissibility and use of similar fact evidence, the conduct of a similar fact voir dire is left to the discretion of the trial judge. The Crown may call witnesses or rely on prior admissions of guilt, witness statements, summaries of anticipated evidence or preliminary hearing evidence.
77. The flexibility trial judges have in conducting similar fact voir dires is illustrated in R. v. Snow, supra [R.B.A. Tab 18]. The accused was charged with first degree murder for the abduction and killing of two people. The Crown sought to lead, as similar fact, evidence that the accused had committed other abductions. The trial judge proceeded at the similar fact admissibility voir dire on the basis of the accused's guilty pleas to some of those matters and on the basis of the evidence from the preliminary inquiry, while inviting the accused to call any witnesses he thought significant. The accused refused and maintained he had the right to cross-examine all similar fact witnesses before the admissibility ruling. The Court of Appeal said: 27
[61] The appellant submitted before this court that the procedure adopted by the trial judge constitutes an error of law. We did not call upon the respondent on this ground of appeal as, in our view, it is without merit. The procedure adopted by the trial judge was appropriate in the circumstances of this case. This was not evidence (for example, a statement by the accused) where the Crown was required to prove certain facts (voluntariness) as a prerequisite for admissibility. In the circumstances of this case, the admissibility of the similar fact evidence did not require the testing of circumstances surrounding the evidence, nor, was there uncertainty about what the witnesses might say. The trial judge was entitled to adopt a more expeditious procedure that was entirely adequate to test the admissibility of the similar fact evidence: R. v. D.{G.N.)(1993), 81 C.C.C. (3d) 65 (Ont.C.A); R. v. Carpenter (1982), 1 C.C.C. (3d) 149 (Ont.C.A); R. v. Dietrich (1970), 1 C.C.C. (2d) 49 (Ont.C.A) at 62.
78. Notwithstanding the flexibility trial judges have concerning the conduct of voir dires generally, the Appellant appears to take the position, at paras 51-52 of his factum, that at a similar fact voir dire the Crown must prove guilt beyond a reasonable doubt (and in the case of a prior conviction, for a second time) because to hold otherwise would violate the presumption of innocence. The Respondent submits, with respect, this position does not accord with similar fact jurisprudence or with the approach to the admissibility of evidence generally, apart from the exception that the Crown must prove the voluntariness of an accused's statement beyond a reasonable doubt. It is also out of step with the principle that similar fact evidence is no more than circumstantial evidence which, when taken with the rest of the Crown's case, might assist in proving the offence beyond a reasonable doubt.
79. A similar argument concerning the requisite burden of proof was considered and rejected in Arp, supra [AB.A Tab 5]. Defence counsel argued it was contrary to the presumption of innocence and principles of fundamental justice for an accused to be convicted on the basis of similar fact evidence when the Crown had not proven beyond a reasonable doubt that one person committed both offences. Cory J. said:
[68] ... 1 cannot accept this submission. As the Attorney General for Ontario stated, it cannot be presumed that because a preliminary determination of fact is not proven to the criminal standard, that the trier of fact is thereby invited to make use of evidence which lacks its purported probative value. It is not inherently unfair that an accused may be convicted even though the jury entertains a doubt as to whether similarity between the acts, on its own, establishes that the same person committed both acts. The appellant's argument presumes that similarity 28
proven to a lesser degree of certainty is without probative value. If the appellant is right, then on the same reasoning, it would have to be concluded that R. v. Carter, [1982] 1 S.C.R 938, was wrongly decided.
80. After referring to the issue in Carter, where this Court declined to require the Crown prove a preliminary finding of fact respecting a conspiracy beyond a reasonable doubt, Cory J. continued:
[70] More generally, in R. v. Evans, [1993] 3 S.C.R 653, it was held that a preliminary finding of fact governing the use of evidence is normally subject to the civil standard of proof, whether the finding is made by the trial judge at the stage of admissibility or by the jury at the outset of their deliberations.
81. When a trier of fact considers whether the similarities between two counts (or acts) were committed by the same person, the determination is on a balance of probabilities [Arp, supra, para. 70]. It would, with respect, make no sense to require the Crown to prove similar fact evidence beyond a reasonable doubt in a voir dire, then allow the trier of fact to act on it on a balance of probabilities in concert with all the other evidence.
82. As Dickson J. (as he then was) said in Erven v. The Queen, [1979] 1 S.C.R. 926 at p. 931 [AB.A Tab 1]:
It is axiomatic that the voir dire and the trial itself have distinct functions. 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 admissible evidence.
83. This distinction has survived the enactment of the Charter. In R. v. Pires; R. v. Lising, [2005] 3 S.C.R 343 [RB.A Tab 14], this Court considered a challenge to the rule that the defence needs to meet an evidentiary threshold to obtain leave to cross examine a police officer who files an affidavit in support of a wiretap authorization. Charron J. for the unanimous Court said:
[28] The appellants' argument, more particularly in respect of the broad right to cross-examination, fails to distinguish between the right to test evidence introduced at the trial on the merits and the threshold evidentiary hearing to determine the admissibility of that evidence. See also R. v. Vukelich (1996), 108 C.C.C. (3d) 193; leave refused [1996] S.C.C.A No. 461 at paras. 17-20,26 [R.B.A Tab 20]. 29
R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57 at paras. 2, 3, 50 and 93 [R.B.A Tab 9].
84. What the Appellant really seeks in this case is an exceptional category of similar fact evidence - the denied prior conviction - which requires a re-trial of the previous matter. He refers to Charron J.A (as she then was) in L.B., supra, at para. 26 [AB.A Tab 15] where she said "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 beyond a reasonable doubt."
85. The Respondent submits this observation means that a prior conviction can be admitted where the evidence is available and admissible and will assist the prosecution in proving the charge before the court beyond a reasonable doubt. It does not mean that a prior conviction has to be proven again beyond a reasonable doubt to be admitted. Similar fact evidence does not have to be proven beyond a reasonable doubt, either at the voir dire stage or in the trial proper. Its evidentiary value, taken with all the other evidence, may assist the Crown with proof beyond a reasonable doubt, but it is not on its own subject to the criminal burden of proof.
86. The Appellant's argument about proof beyond a reasonable doubt at a similar fact voir dire is not necessary for the right to make full answer and defence and is out of step with the clear distinction between voir dires and trials, as recognized in the jurisprudence. The Appellant was afforded a full and fair opportunity to test the evidence at the similar fact voir dire even though the trial judge concluded, in retrospect, that he could not challenge his conviction. The trial judge's conclusion to admit the evidence reveals no error in law.
E. Abuse of process and the principle of finality in litigation
87. A corollary to the Appellant's position that similar fact evidence should be proven beyond a reasonable doubt, even when it has already been the subject of a conviction, is his assertion of an ongoing entitlement to challenge his prior conviction with a view to preventing the Crown from tendering it as similar fact evidence. The Appellant refers to the doctrine of issue estoppel in this regard. The Respondent submits the B.C. Court of Appeal correctly identified abuse of process as the bar to the Appellant's attempt at 30 relitigation of his prior conviction at the voir dire stage, while upholding the Appellant's right at trial to deny his prior conviction and test the evidence called in support of it. This finding is consistent with the approach of other appellate courts where similar fact conduct arising from prior convictions or pleas of guilty is disputed: W.B.C, supra and Ford, supra [AB.A Tabs 10 and 27]. The dispute goes to the weight to be given the evidence by the trier of fact, not the admissibility of the evidence.
88. Abuse of process was considered by this Court in Toronto (City) v. C.U.P.E., supra [AB.A Tab 2], where a labour arbitrator determined that an employee's criminal conviction for sexual assault was admissible evidence but was not conclusive as to whether the employee had sexually assaulted the victim. The arbitrator found the presumption raised by the criminal conviction was rebutted by the employee's denial of his guilt and ruled he had been dismissed without just cause. Arbour J. for the majority said:
[15] In this case, the reasonableness of the arbitrator's decision to reinstate the grievor is predicated on the correctness of his assumption that he was not bound by the criminal conviction. That assumption rested on his analysis of complex common law rules and of conflicting jurisprudence. The body of law dealing with the relitigation of issues finally decided in previous judicial proceedings is not only complex; it is also at the heart of the administration of justice. Properly understood and applied, the doctrines of res judicata and abuse of process govern the interplay between different judicial decision makers. These rules and principles call for a judicial balance between finality, fairness, efficiency and authority of judicial decisions ... [Respondent's emphasis].
89. Arbour J. considered the potential application of issue estoppel (one branch of res judicata), the collateral attack rule and abuse of process to the issue before the Court. In determining the latter applied, Arbour J. acknowledged abuse of process is used in a variety of legal contexts and at times may be subsumed into Charter principles where there is overlap between abuse of process and constitutional remedies [para. 36] and explained:
[37] In the context that interests us here, the doctrine of abuse of process engages "the inherent power of the court to prevent the misuse of its procedure, in a way that would ... bring the administration of justice into disrepute" (Canam Enterprises Inc. v. Coles [citation omitted], at para. 55, per Goudge J.A, 31
dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63». Goudge J.A. expanded on that concept in the following terms at paras. 55-56:
The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite [citation omitted].
One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [Emphasis added.]
90. Arbour J. noted that the doctrine of abuse of process "has been extended beyond the strict parameters of res judicata while borrowing much of its rationales and some of its constraints" [para. 38]. The doctrine is attractive because "it is unencumbered by the specific requirements of res judicata while offering the discretion to prevent relitigation, essentially for the purpose of preserving the integrity of the court's process" [para. 42]. Arbour J. acknowledged that critics maintain that when abuse of process is used as a "proxy" for issue estoppel:
[43] ... it obscures the true question while adding nothing but a vague sense of discretion. I disagree. At least in the context before us, namely, an attempt to relitigate a criminal conviction, I believe that abuse of process is a doctrine much more responsive to the real concerns at play. In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts. Whether it serves to disentitle the Crown from proceeding because of undue delays (citation omitted) or whether it prevents a civil party from using the courts for an improper purpose (citation omitted), the focus is less on the interest of parties and more on the integrity of judicial decision making as a branch of the administration of justice. In a case such as the present one, it is that concern that compels a bar against relitigation, more than any sense of unfairness to a party being called twice to put its case forward, for example. When that is understood, the parameters of the doctrine become easier to define, and the exercise of discretion is better anchored in principle. [Respondent's emphasis]
91. While most of the authorities cited in support of a court's power to prevent relitigation of decided issues, where issue estoppel does not apply, involve an attack on a criminal conviction in a civil proceeding, Arbour J. found no reason in principle for 32 limiting abuse of process to specific circumstances [para 49] nor should its application be dependent on the motive or interests of a party:
[51] Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.
[52] In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that from the system's point of view, relitigation carries serious detrimental effect and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para .. 80. [Respondent's emphasis]
92. Arbour J. noted, at para. 53, there are circumstances in which the bar against relitigation would create an unfairness, such as where the first proceeding was not defended vigorously because the stakes were not high, or where new evidence came to light or the original proceeding was somehow tainted:
[54] These considerations are particularly apposite when the attempt is to relitigate a criminal conviction. Casting doubt over the validity of a criminal conviction is a very serious matter. Inevitably in a case such as this one, the conclusion of the arbitrator has precisely that effect, whether this was intended or not. The administration of justice must equip itself with all legitimate means to prevent wrongful convictions and to address any real possibility of such an occurrence after the fact. Collateral attacks and relitigation, however, are not in my view appropriate methods of redress since they inordinately tax the adjudicative process while doing nothing to ensure a more trustworthy result. [Respondent's emphasis] 33
93. Rather than endorse, as the lower court did, a self-standing and independent finality principle, the majority found the common law doctrines of issue estoppel, collateral attack and abuse of process "adequately capture the concerns that arise when finality in litigation must be balanced against fairness to a particular litigant." [at para. 55]. In the result, the majority found the grievor's conviction, against which he had exhausted all his avenues of appeal, with all its consequent legal effects, must stand [para. 56].
94. The Respondent submits it is apparent from the reasons in Toronto (City) v. C.U.P.E. that abuse of process is not confined to the consideration of a criminal conviction in a civil context. The importance offinality in litigation does not, and cannot, assume a lesser role in the criminal law sphere. An illustration of the importance of the principle of finality, as expressed in the context of raising a new argument on appeal, appears in Justice L'Heureux-Dube's dissenting reasons in R. v. Brown, [1993] 2 S.C.R 918 at 923 [RB.A. Tab 2]:
... [T]he general prohibition against new arguments on appeal supports the overarching societal interest in the finality of litigation in criminal matters. Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases. Moreover, society's expectation that criminal matters will be disposed of fairly and fully at the first instance and its respect for the administration of justice would be undermined. Juries would rightfully be uncertain if they were fulfilling an important societal function or merely wasting their time. For these reasons, courts have always adhered closely to the rule that such tactics will not be permitted. See also R. v. Sarson, [1996] 2 S.C.R 223 at paras 34-36 [RB.A. Tab 16]. Schreiber v. Canada (Attorney General), 2008 CarswellNat 1211, 2008 FCA 147 [RB.A. Tab 21]. Gary T. Trotter, Justice, Politics and the Royal Prerogative of Mercy: Examining the Self-Defence Review, (2001), 26 Queen's L.J. 339 at paras. 47-57 [RB.A. Tab 22].
95. As a general rule, the doctrine of abuse of process by relitigation would apply to the entire subsequent proceeding to prevent challenges to a prior conviction; however, there may be exceptions, as delineated by this Court in Toronto (City) v. C.U.P.E., 34 supra at para. 52. The third factor or exception (what is required in the interests of fairness) is what may distinguish the application of the doctrine in a voir dire from its application in a trial. Fairness in a criminal trial may well require providing an accused the ability to challenge a prior conviction which the Crown seeks to lead as similar fact evidence. The context of a similar fact voir dire, however, is such that fairness does not require an opportunity for an accused to challenge a prior conviction. The purpose of the voir dire is to screen evidence to assess its admissibility against the standard of: (1) whether the similarities are such that it is more likely than not that the acts in question are the work of one person and (2) that there is "some" evidence to connect the prior act to the individual. With that threshold in mind, a challenge to a prior conviction will not alter the admissibility analysis unless there is evidence to address one of the other two factors in Toronto (City) v. C.U.P.E. (first proceeding tainted by fraud or dishonesty or fresh evidence which impeaches the original result).
96. Fairness, like other rights, must be assessed in context. And, as this Court said in Pires, supra, U[t]here is no point in permitting cross-examination if there is no reasonable likelihood that it will impact on the question of the admissibility of the evidence" [R.B.A Tab 14, para. 31]. The inability to affect the outcome must also be considered in light of the concern about "the constructive use of judicial resources" [Pires, para. 35]. For these reasons, neither fairness nor the right to full answer and defence requires an opportunity for a challenge to a prior conviction at a similar fact voir dire.
F. Application to the judgments below
97. The trial judge, in her ruling admitting the prior conviction as similar fact evidence after hearing all the evidence and submissions of counsel, determined the Appellant could not challenge his prior conviction at the voir dire stage. She relied on the doctrine of issue estoppel, but without the benefit of this Court's decision in R. v. Mahalingan, [2008] 3 S.C.R. 316,2008 SCC 63 [AB.A Tab 19]. On appeal from conviction, after Mahalingan was decided, the B.C. Court of Appeal found the trial judge was correct to say the Appellant could not challenge his prior conviction at the voir dire stage, but 35 found the impediment to be abuse of process, rather than issue estoppel, relying on Toronto (City) v. C.U.P.E.
98. The Appellant relies on para. 42 of Mahalingan, supra to argue that abuse of process is not available in the context engaged by this case [A.F., para. 75]. At para. 42, McLachlin C.J. for the majority observed "the remedy of abuse of process mayor may not provide protection against relitigation of a particular issue" and went on to note it is a "broad, somewhat vague concept, that varies with the eye of the beholder." The Respondent submits this observation must be seated in the appropriate factual context. Mahalingan concerned the effect of a prior acquittal on a subsequent trial where the Crown relied in part on some of the evidence it tendered at the earlier proceeding. The majority determined the Crown was estopped in relation to issues necessarily resolved in the accused's favour as part of the acquittal or on which findings were made.
99. At para. 46, McLachlin C.J. noted the goals served by issue estoppel include:
[46] ... [P]reservation of the related institutional value of judicial finality and economy. Judicial finality and economy are essential to preserving confidence in the justice system. Criminal proceedings should not go on longer than necessary. Once factual issues are determined one way or the other, they should be deemed finally determined, subject to appeal. Relitigation should not be permitted. This rule is consistent with the Crown's duty to be diligent in garnering evidence and pursuing its case; the Crown will be encouraged in its duty by the knowledge that it will not be permitted a second chance.
Issue estoppel and abuse of process thus have a shared rationale - the institutional value of judicial finality and economy - but they are context dependent. In the context of an acquittal, the majority in Mahalingan was concerned that abuse of process placed too high a threshold on an accused who had previously been exonerated to resist the Crown's efforts to relitigate the same issue. Where a conviction is concerned, however, the Respondent submits the doctrine of abuse of process applies, as this Court held in Toronto (City) v. C.U.P.E.
100. To frame the issue in its starkest terms, if the Crown is not permitted a second chance at litigating an acquittal in a subsequent proceeding, the corollary is that an accused should not be permitted a second chance at litigating his prior conviction 36 outside of the proper appeal channels provided for in the Criminal Code. But the decision of the B.C. Court of Appeal in this case did not go nearly so far because it did not constrain the Appellant's ability to challenge the evidence in the trial proper. Chiasson J.A for the Court determined that to allow the Appellant's challenge to his prior conviction at the voir dire stage would have been an abuse of process by relitigation. The similar fact voir dire was concerned with preliminary findings of admissibility, not with the soundness or ultimate evidentiary value of the result from the previous trial. There was no indication, nor has the Appellant attempted to demonstrate any in a fresh evidence application before this Court or before the B.C. Court of Appeal, that the first proceeding was tainted by fraud or dishonesty or that new, previously unavailable evidence conclusively impeached the original result [para. 52 of Toronto (City) v. C.U.P.E., supra].
101. The third criterion from Toronto (City) v. C.U.P.E., fairness, was respected throughout the proceedings. It is the Respondent's submission that, at most, fairness required the Appellant be permitted to deny his prior conviction at the trial stage. But the reality in this case was quite different. The trial judge did not make a ruling about the prior conviction until the conclusion of the voir dire. As a result, the Appellant was not prevented from testifying during the similar fact voir dire and his lawyer thoroughly challenged every aspect of the admissibility of the prior conviction - whether the evidence met the similar fact admissibility standard and whether its probative value outweighed its prejudicial effect. Defence counsel went through the same exercise with the similar fact witnesses in the trial proper. The Appellant gave evidence at trial, unrestricted in what he could say about the prior conviction. In accordance with the approach in IN..B.C. and Ford, supra [AB.A. Tabs 10 and 27] and R. v. M.B., [2011] O.J. No. 428 (C.A.) [AB.A Tab 16], his denial of the prior conviction was a matter of weight for the trial judge to consider.
Conclusion
102. The similar fact evidence in this case had resulted in a prior conviction, making it strong, cogent evidence. The trial judge thoroughly considered the principles of admissibility of similar fact evidence established by this Court and determined the 37 probative value of the evidence outweighed its prejudicial effect. The B.C. Court of Appeal applied the correct deferential standard to the trial judge's decision to admit the evidence. The Respondent submits there is no reason to exclude evidence of a prior conviction, nor is there any reason to require the Crown to re-prove its case beyond a reasonable doubt as a precondition to its admissibility.
103. Even if this Court were to find error and conclude an accused can challenge a prior conviction on a similar fact voir dire, that error would have no effect on the outcome of this case. The trial judge's decision about the admissibility of the prior conviction and ability to challenge it was made after the conclusion of the voir dire. As a result, the Appellant had free rein to challenge the underlying circumstances of his prior conviction and the fact he was convicted in the context of the voir dire. He had the same opportunity at trial and his ability to testify about the prior conviction was not circumscribed in any way by the trial judge. Simply put, the Appellant was properly convicted after a procedurally fair and substantively sound trial. If necessary, the Respondent relies on the curative proviso in s. 686(1 )(b )(iii). 38
PART IV
COSTS
104. The Respondent makes no submission as to costs.
PART V
ORDER SOUGHT
105. The Respondent respectfully requests that the appeal from the decision of the B.C. Court of Appeal be dismissed.
ALL OF WHICH IS RESPECTULLY SUBMITTED.
Elizabeth A. Campbell Counsel for the Respondent
June 27,2011 Vancouver, British Columbia 39
PART VI
TABLE OF AUTHORITIES
PARAGRAPH
R. v. Arp, [1998] 3 S.C.R. 339 ...... 6, 9, 36, 55, 59,60, 61, 62, 79, 81 Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63 ...... 10, 88, 94, 95, 99, 100 ,101 R. v. Handy, [2002] 2 S.C.R. 908 ...... 36, 54, 57, 64, 66, 67, 68 David M. Paciocco and Lee Stuesser, The Law of Evidence, 4th ed. (Toronto: Irwin Law Inc., 2005) ...... 61,66 R. v. Pickton, 2009 BCCA 300, 2009 CarswellBC 3825 ...... 61 R. v. Sweitzer, [1982] 1 S.C.R. 949 at 954 ...... 61 R. v. Perrier, [2004] 3 S.C.R. 228, 2004 SCC 56 ...... 61 R. v. Shearing, [2002] 3 S.C.R. 33 ...... 65,68,74 R. v. H.(J.) (2000), 145 C.C.C. (3d) 177 (Ont.C.A.) ...... 66 R. v. L.B. (1997), 116 C.C.C. (3d) 481 (Ont.C.A.) ...... 68,84 R. v. MacCormack (2009),241 C.C.C. (3d) 516 (Ont.C.A.) ...... 66 R. v. Corbett, [1988] 1 S.C.R. 670 ...... 71, 74 R. v. D(L.E.) [1989] 2 S.C.R. 111 ...... 71 R. v. G.(S.G.), [1997] 2 S.C.R. 716 ...... 71 R. v. Fisher (2003), 179 C.C.C. (3d) 168 (Sask.C.A.) ...... 74 R. v. James (2006),213 C.C.C. (3d) 235 (Ont.C.A.) ...... 74 R. v. Snow (2004), 190 C.C.C. (3d) 317(Ont.C.A.) ...... 74, 77 R. v. Ford (2000), 145 C.C.C. (3d) 336 (Ont.C.A ...... 74, 87, 101 R. v. W.B.C. (2000), 142 C.C.C. (3d) 490 (Ont.C.A.) ...... 74, 87, 101 R. v. Blake (2003),181 C.C.C. (3d) 169 (Ont.C.A.) ...... 74 R. v. Rurak, 2006 CarsweliAlta 1243, ABPC 251 ...... 74 R. v. Olsen (1999), 131 C.C.C. (3d) 255 (Ont.C.A.) ...... 74 Erven v. The Queen, [1979] 1 S.C.R. 926 ...... 82 R. v. Pires, R. v. Lising, [2005] 3 S.C.R. 343 ...... 83, 96 R. v. Vukelich (1996),108 C.C.C. (3d) 193 (8.C.C.A.) ...... 83 40
PARAGRAPH
R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC ...... 83 R. v. Brown, [1993] 2 S.C.R. 918 ...... 94 R. v. Sarson, [1996] 2 S.C.R. 223 ...... 94 Schreiber v. Canada (Attorney General), 2008 CarsweliNat 1211, 2008 FCA 147 ...... 94 Gary T. Trotter, Justice, Politics and the Royal Prerogative of Mercy: Examining the Self-Defence Review, (2001),26 Queen's L.J. 339 ...... 94 R. v. Mahalingan, [2008] 3 S.C.R. 316, 2008 SCC 63 ...... 97, 98, 99 R. v. M.B., [2011] O.J. No. 428 (C.A.) ...... 101 41
PART VII
STATUTORY PROVISIONS
106. The Respondent does not rely on any statutory provisions.