R. v. Lafond

2011 BCSC 367 R. v. Lafond IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Lafond, 2011 BCSC 367 Date: 20110325 Docket: 147393-3 Registry: Victoria Regina v. John Michael Lafond Before: The Honourable Mr. Justice Macaulay Reasons for Ruling on Voir Dire - Admissibility of Similar Act Evidence Counsel for the Crown: C. Jennings Counsel for the Defence: T.J. Russell Place and Date of Ruling: Victoria, B.C. March 11 and 14, 2011 Place and Date of Judgment: Victoria, B.C. March 25, 2011 [1] The accused is charged with breaking and entering a dwelling located at 69 Gorge Road West, on August 22, 2005, and committing a robbery of Ms. Cameron, the lone female occupant, who was age 72 at the time. The accused is further charged with uttering a threat to cause death or bodily harm to Ms. Cameron during the incident. [2] The Crown seeks to rely on evidence that the accused committed a break and enter followed by a robbery at a dwelling, located in the same general area, on August 25, 2005. In that case, the victim was also a lone female occupant in her 70s. The accused pleaded guilty to the August 25 offence. The Crown wishes to rely on this evidence as circumstantial evidence that the accused was the intruder in the August 22 event that is the subject of the charges. [3] At the conclusion of a voir dire, I ruled that the proposed similar act evidence is inadmissible. These are my reasons. [4] Although the Crown agrees that disposition evidence is ordinarily inadmissible, it contends that the probative value of the evidence respecting the August 25 event outweighs its prejudicial effect. While the Crown says striking similarity between the events is not required as a pre-condition to admissibility, according to the Crown, such similarities are present in any event. [5] The defence contends that striking similarities are necessary when the proposed similar fact evidence goes to the issue of identity. The defence says that a comparison of the behaviour of the intruder in the two events does not support, on a balance of probabilities, that the same intruder was involved in each. [6] The Crown and defence agree that, at this stage, I should not have any regard to the physical descriptors of the intruders that the victims provided in reaching my conclusion respecting admissibility. They do accept that the specific clothing worn may, depending on circumstances, be relevant to determining the behaviour. The link between the accused and the proposed similar act evidence is established, in this case, by his guilty plea to the charges that arose out of the August 25 event. [7] One of the leading cases on the admissibility of similar act evidence tendered to prove identity is R. v. Arp, [1998] 3 S.C.R. 339. There the accused was charged with two counts of murder. The trial judge ruled that there were "significant and striking similarities" between the two events and refused a defence application to sever the counts. He later charged the jury on the basis that the evidence respecting one killing was admissible on the other and vice versa for the limited purpose of deciding whether the accused was the person who committed the offences. The accused was convicted of both counts, appealed unsuccessfully to the Court of Appeal and then to the Supreme Court of Canada. [8] The latter appeal also failed. My references below are all to the decision of the Supreme Court of Canada. [9] Evidence of prior bad acts may be relevant but is usually inadmissible "because its slight probative value is ultimately outweighed by its highly prejudicial effect" (para. 40). One of the dangers associated with such evidence is the risk that the trier of fact might conclude that the accused is a bad person who is likely to be guilty of the offence charged (also at para. 40). Such a line of reasoning is prohibited and disposition evidence is inadmissible if that is the only purpose for which it is offered (para. 41). [10] The use to which disposition evidence may properly be put where identity is at issue is set out in para. 43, as follows: [43] It follows that where 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. [Emphasis added.] The Court went on to say that the inference is "possible only if the high degree of similarity between the acts renders the likelihood of coincidence objectively improbable" and "where the evidence shows a distinct pattern to the acts in question, the possibility that the accused would repeatedly be implicated in strikingly similar offences purely as a matter of coincidence is greatly reduced" (para. 43). The degree of similarity required must be such that the probative value significantly outweighs the prejudice to the accused (para. 44). [11] Striking similarity is not required in all cases, but where identity is the issue, acts, with a unique trademark or signature, will be strikingly similar and, as a result, highly probative and admissible (para. 45). Similarly, although not applicable in Arp or this case, a number of significantly similar acts taken together may suffice (para. 45). [12] In the result, in Arp, the Court expressed the test for admissibility where the issue is identity, at para. 48, as follows: [48] Where the fact is issue is the identity of the perpetrator of the crime, then in the usual course of events the trial judge must assess the degree of similarity demonstrated by the manner in which the acts in question were committed to determine whether is likely the same person committed the alleged similar acts. At para. 50, the Court summarized the approach to be taken in deciding whether to admit similar act evidence adduced to prove identity: (1) Generally where similar fact evidence is adduced to prove identity a high degree of similarity between the acts is required in order to ensure that the similar fact evidence has the requisite probative value of outweighing its prejudicial effect to be admissible. The similarity between the acts may consist of a unique trademark or signature on a series of significant similarities. (2) In assessing the similarity of the acts, the trial judge should only consider the manner in which the acts were committed and not the evidence as to the accused's involvement in each act. (3) There may well be exceptions but as 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. (4) The jury will then be able to consider all the evidence related to the alleged similar acts in determining the accused's guilt for any one act. Notwithstanding the submission of the Crown in the present case, it is difficult to envisage anything less than a high degree of similarity akin to a unique trademark or signature having sufficient probative value with regard to the proof of identity so as to outweigh the prejudicial effect. [13] I am reinforced in my conclusion by the further statement of the Supreme Court of Canada in R. v. Handy, 2002 SCC 56 at para. 77, as follows: [77] Thus in Arp, where the issue was identification, Cory J. cited at para. 43 R. v. Scopelliti (1981), 63 C.C.C. (2d) 481 (Ont. C.A.), where Martin J.A. observed that evidence of propensity on the issue of identification is not admissible "unless the propensity is so highly distinctive or unique as to constitute a signature" (p. 496). Martin J.A. made the propensity point again in his lecture on "Similar Fact Evidence" published in [1984] Spec. Lect. L.S.U.C. 1, at pp. 9-10, in speaking of the Moors Murderer case (R. v. Straffen, [1952] 2 Q.B. 911 (Eng. Q.B.): Although evidence is not admissible to show a propensity to commit crimes, or even crimes of a particular class, evidence of a propensity to commit a particular crime in a particular and distinctive way was admissible and sufficient to identify [Straffen] as the killer of the deceased. [Emphasis added in original.] The issue in Handy was not identification and, in contrast, the Court went on to point out that a different degree of similarity may suffice depending on the particular circumstances of the case where the issue is not identification (at paras. 78-79). [14] To similar effect, when the issue is identity, is R. v. Carpenter, 2010 BCCA 27 (leave to appeal refused, 2010 CarswellBC 1818). There, the Court of Appeal focused on the striking similarities that pointed to an "unlikelihood of coincidence" (at paras. 16-18). [15] In Carpenter, the Court of Appeal expressly rejected the contention by the appellant accused that the trial judge erred in admitting similar act evidence absent some evidentiary link between the appellant and both incidents. Having set that out, I observe that there were 17 points in Carpenter that the Court of Appeal concluded created striking similarities between the incidents (para. 16). [16] In the present case, the evidence reveals some similarities between the two events. The two events occurred in relatively close proximity, both as to time and place. Both events occurred early in the morning, although one while it was still dark and the other after daylight. [17] In each case: (1) The victim was an elderly woman living alone; (2) The intruder entered the dwelling through an open window; (3) The victim was asleep and woke to find an intruder in her home; (4) The victim did not know the intruder in either case; (5) Physical contact occurred only after the victim confronted the intruder; (6) The intruder grabbed the victim and pushed or threw her to the floor; (7) The intruder demanded money; (8) When the victim screamed, the intruder took physical steps until the victim agreed not to scream; (9) The intruder wore a ball cap, T-shirt and jeans; and (10) The intruder displayed some athleticism on or after leaving. There are also some differences between the events. [18] The differences are as follows: (1) The entry into the Cameron residence was during the dark early morning hours. The entry into the other home was later in the morning during daylight hours; (2) The intruder into the Cameron residence had a flashlight with him. The intruder into the other home did not; (3) In the Cameron incident, the intruder took a wallet and contents, including money, but did not take any jewelry, even though the complainant's ring was in plain view, along with other jewelry, near her bed. In the other incident, the intruder took money from a billfold, then searched extensively for jewelry and, ultimately, took jewelry; (4) The intruder used more extensive violence in the second event, threw the victim to the ground a second time and also wrestled with the victim and put her on the bed; (5) The intruder used a bike as he left the dwelling in the second event while Ms. Cameron observed the intruder run away; (6) During the second event, the intruder stated several times that he was hungry and also apologized to the victim before he left. There were no similar exchanges in the Cameron event; (7) Near the end of the Cameron event, the intruder looked for the phone before leaving and said he wanted to pull it out of the wall. In the second event, the intruder heard police cars approaching and left; and (10) Ms. Cameron did not observe how long the event lasted but, based on her description, the intruder could not have been in the residence very long after she woke up. The second event lasted at least 30 minutes from the time the victim awoke and the end when it was interrupted by the sound of police sirens. Based on all of the foregoing, is the degree of similarity between the events sufficient to point to an "unlikelihood of coincidence" or, to put it another way, is it likely the same person committed both acts? [19] I am not persuaded that the evidence is sufficient to establish a signature. The evidence falls short of establishing the probability that the same person committed both acts. Many of the similarities, through to the point of the victim waking up, are rather generic signs of a residential break and enter involving a young fit male intruder dressed in a fashion readily observable on the streets at any time of day or night. [20] There is some greater similarity flowing from the manner in which the intruder first dealt with the victim after she awoke and challenged him in each event but I am not persuaded that factor is enough to create a signature. First, there are significant differences respecting the extent of the violence and second, the intruder left shortly after getting money in the Cameron event, but remained and continued searching for jewelry even after getting money during the second event. [21] In the result, the risk of prejudice flowing from the proposed similar act evidence outweighs any limited probative value. "M.D. Macaulay, J." The Honourable Mr. Justice Macaulay