R. v. Gagne

R. v. Gagne Collection Decisions of the Court of Appeal Date 1999-08-24 Docket numbers C28043 Judges Brooke, John Watson; Finlayson, George Duncan; Rosenberg, Marc Subject Criminal Decision Content DATE: 19990824 DOCKET: C28043 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. BRIAN LAWRENCE GAGNE (Appellant) BEFORE: BROOKE, FINLAYSON and ROSENBERG JJ.A. COUNSEL: Michelle Fuerst, for the appellant David Lepofsky, for the respondent HEARD: August 16, 1999 On appeal from his conviction by Mr. Justice C. B. Noble, sitting with a jury, on October 10, 1996 and from his sentence imposed on December 20, 1996 ENDORSEMENT [1] The trial judge is required to review the substantial parts of the evidence and give the jury the theory of the defence so that they may appreciate the value and effect of that evidence. [2] In this case, it was an essential part of the defence that the complainants' memory of the abuse had been innocently tainted by the similar fact witness and the access to the pornographic novel. There was a factual foundation for this submission but it was never placed before the jury in a manner that they could appreciate its value and effect. Objection was taken to the charge but the trial judge refused to recharge. In our view, this constituted a serious misdirection. [3] This error was compounded by the direction on similar fact evidence. The trial judge instructed the jury that this evidence was relevant to certain matters that were not in issue in this case. While he did tell the jury that it was relevant to credibility, he failed to instruct the jury as to how it could be used. As was said by this court in R. v. P. (G.F.) (1994), 89 C.C.C. (3d) 176 at 181, the trial judge should have told the jury that it was open to them to conclude in view of the relationship between the appellant and the complainants and the similar fact witness and having regard to the facts of the three situations that a pattern of similar behaviour existed suggesting that the complainants' stories were true. [4] More seriously, the trial judge failed to direct the jury that the similarities upon which the Crown relied could be explained by innocent contamination from the similar fact witness. As Cory J. said in R. v. Arp (1998), 129 C.C.C. (3d) 321 (S.C.C.) at 344, the force of similar fact evidence lies in the objective improbability of coincidence. Where, as here, there is an alternative explanation, it should be pointed out to the jury. This was of particular significance in this case as the jury asked a question as to how to use the similar fact evidence. Unfortunately, the trial judge merely repeated the earlier erroneous and incomplete instructions. [5] This is not an appropriate case for application of the proviso in s. 686(1)(b)(iii) of the Criminal Code. The jury was concerned about the use of the similar fact evidence and it was essential that the jury receive proper instructions on those matters and the theory of the defence as it related to the similar fact evidence. [6] Accordingly, the appeal is allowed, the convictions on counts 1 and 2 set aside, and a new trial ordered on those counts.