R. v. Warren

R. v. Warren Collection Decisions of the Court of Appeal Date 1999-12-03 Docket numbers C28928 Judges McMurtry, Roy; Rosenberg, Marc; Moldaver, Michael James Subject Criminal Decision Content DATE: 19991203 DOCKET: C28928 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THEQUEEN (Respondent) v. GEOFFREY R. WARREN (Appellant) BEFORE: McMURTRY C.J.O., ROSENBERG and MOLDAVER JJ.A. COUNSEL: Geoffrey R. Warren, the appellant, in person Richard Litkowski, Duty counsel Graeme Cameron, for the respondent HEARD: November 24, 1999 On appeal from his conviction by Mr. Justice D. Rutherford, sitting with a jury, on December 3, 1997 ENDORSEMENT [1] The appellant raises two grounds of appeal on his appeal from conviction: 1. The jury exhortation; 2. The admission of similar fact evidence. [2] With respect to the jury exhortation, in our view there is no reasonable possibility that the trial judge’s statement, during the exhortation, that the jurors in the minority should reconsider their views, coerced the jury or interfered with its right to deliberate in complete freedom from extraneous considerations. This language should now be avoided in view of R. v. G. (R.M.) (1996), 110 C.C.C. (3d) 26 (S.C.C.). However, we note that following the exhortation, the jury continued to deliberate for several hours and in the end, informed the trial judge that it could not reach a verdict on one of the two counts. This is compelling evidence that the members of the minority did not feel coerced. We would therefore not give effect to this ground of appeal. [3] We would also not interfere with the trial judge’s ruling admitting the similar fact evidence. In his very helpful submissions on behalf of the appellant, Mr. Litkowski points out that the conduct itself did not involve criminality on the part of the appellant and was in this respect dissimilar from the charged conduct. He therefore submits that the similar facts did not reach the level of striking similarity or the high degree of similarity required where the evidence is adduced to prove identity in accordance with the decision of the Supreme Court of Canada in R. v. Arp (1998), 129 C.C.C. (3d) 321. [4] In R. v. Arp at p. 342, Cory J. explained that 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”. Where the evidence is adduced on the issue of identity this generally will require a “high degree of similarity”. However, as he pointed out at p. 345, the similarity may consist of a unique trade mark or signature or a “series of significant similarities”. This requires the court to look not only at the actual acts of misconduct but the surrounding circumstances. [5] In our view, when all the circumstances are considered, the admission of the similar fact evidence meets the test of objective improbability set out in R. v. Arp. It was so improbable that there was another unaccompanied man frequenting children’s wave pools in the Ottawa area and engaging in inappropriate play with young girls previously unknown to him, who also answered to the name of Geoff and so closely resembled the appellant as to be mistaken in a line-up for the appellant, that the possibility of coincidence was negatived. [6] This case is not unlike the decision of this court in R. v. Dickinson (1984), 40 C.R. (3d) 384 (Ont. C.A.). In Dickinson at p. 389, Martin J.A., in terms not unlike those employed by Cory J. in Arp, held that the admission of similar fact evidence is exceptional and requires a strong degree of probative force. However, he also pointed out that the degree of similarity required to give the similar fact evidence the high degree of probative force required will vary according to the other evidence in the case. Where, unlike this case, the similar fact evidence must bear the whole burden of proof of identity, a very high degree of similarity is required. In each case, however, the touchstone for admissibility is the likelihood of coincidence. In Dickinson at p. 390, the court found that it would be an “extraordinary coincidence” that there was another “peeping Tom” who looked like the accused operating in the very same small geographical area. Likewise, the facts of this case would have to fall within the realm of extraordinary coincidence. In our view, the trial judge properly exercised his discretion in admitting the similar fact evidence. The jury was very carefully charged as to the use of this evidence. [7] Accordingly, the appeal from conviction is dismissed. (signed) "R. McMurtry C.J.O." (signed) "M. Rosenberg J.A." (signed) "M. J. Moldaver J.A."