Doyon, Moore, Hardy

Appeal from conviction. Dismissed.

The appellant appeals from a judgment of the Superior Court convicting him on 54 counts, including 1 count of murder and 3 of attempted murder, for crimes committed during 13 offences of breaking and entering into dwelling-houses. The trial judge authorized the admission of each of the 13 events underlying the charges as similar fact evidence to establish the identity of the intruder.

It is true that, before he declared the similar fact evidence admissible, the judge did not specifically refer to the assessment of prejudice. On the other hand, a reading of the judgment shows that the probative value of this evidence was so high in his eyes that, because of the many similarities, it easily prevailed over any prejudice that might be caused. As for the differences among the 13 events, they do not contradict the finding that the modus operandi was the same. The differences must be significant to affect the outcome of the analysis, and that is not the case here. Moreover, a “signature” need not be established for the evidence to be admissible; the cumulative effect of significant facts may suffice.

In addition, the Court does not see why elements extrinsic to the similar fact evidence cannot be considered at the admissibility stage. It goes without saying that this evidence would not be relevant if it were not in any way connected to the accused. But that does not mean that the connection between the accused and the similar facts must necessarily emerge from the similar fact evidence, or that the judge must first rule on the similarities before considering such a connection. The similar fact evidence serves to identify the intruder as the accused, not the opposite, such that the similarity may lead to the conclusion that the accused, who is connected to the similar facts, is indeed the perpetrator of the crimes. That does not mean that these stages of the analysis must be dealt with sequentially. The similarities must be examined by analyzing the way in which the offences were committed; the consideration of the connection between the accused and the similar facts may be performed differently. The two stages are not so watertight that a failure to deal with them in this order and perfectly separately would constitute an error. 

The Court agrees with the judge that striking similarities or a signature are warranted only where the similar fact evidence is the only evidence. In other cases, the cumulative  effect of significant similarities can certainly suffice. In the circumstances, the judge did not make a reviewable error in his analysis of the admissibility of the similar fact evidence.

Regarding the use of the similar fact evidence at trial, which carried less weight than the evidence presented at the admissibility stage, it must be recalled that such evidence need not independently establish that the accused is guilty. What is more, this evidence is not intended to be analyzed in isolation; it constitutes one of the pieces of evidence to be considered by the trier of fact. In this case, the judge did not need to revisit his initial decision on admissibility. A ruling on admissibility can always be reviewed as an exceptional measure in the course of the trial if significant changes take place that could render the evidence inadmissible. That did not occur here. The judge did not err in finding that the conviction was based on an analysis of the evidence overall and not on the similar fact evidence alone.

Last, there is no evidence of collusion between the two witnesses for the prosecution who made statements to the police or of any intent to falsely incriminate the appellant, and it was open to the judge to conclude as he did.

Text of the decision: http://citoyens.soquij.qc.ca