Statton v. Johnson et al.

Citation: Statton v. Johnson Date: 19990318 1999 BCCA 0170 Docket: CA023633 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN: CLINT NELSON STATTON PLAINTIFF (APPELLANT) AND: LONNIE JOHNSON and PATRICIA ANN BUGERA DEFENDANTS (RESPONDENTS) AND: INSURANCE CORPORATION OF BRITISH COLUMBIA THIRD PARTY Before: The Honourable Mr. Justice Goldie The Honourable Mr. Justice Donald The Honourable Mr. Justice Hall Peter D. Messner, Q.C. Counsel for the Appellant Richard R. Sugden, Q.C. and Counsel for the Respondent R.W. Mackay Lonnie Johnson Gregory K. Steele Counsel for the Respondent Patricia Ann Bugera Place and Date of Hearing Vancouver, British Columbia February 3, 1999 Place and Date of Judgment Vancouver, British Columbia 18 March 1999 Written Reasons by: The Honourable Mr. Justice Hall Concurred in by: The Honourable Mr. Justice Goldie The Honourable Mr. Justice Donald Reasons for Judgment of the Honourable Mr. Justice Hall: [1] This case arises out of a serious single car motor vehicle accident that occurred 14 July 1992 shortly after 9:00 p.m. on Highway 97 south of Williams Lake. The issue at trial was who was driving the vehicle, a Dodge Daytona owned by the respondent Bugera at the time of the accident. The respondents, Bugera and Johnson, resided together as man and wife at the date of the accident. The matter was before this court previously in a criminal law aspect. See: R. v. Statton (1996), 77 B.C.A.C. 211. [2] At the date of the accident the respondent Johnson did not possess a valid B.C. drivers licence because he was unable to pay the required assessment levied against him on account of his accumulated driving offence record. But as the trial judge noted, Johnson was not thereby deterred from driving because on the day of the accident he drove the Dodge Daytona on at least two occasions. In the afternoon of that day, he went in the Daytona to a nearby pub to meet with the appellant Statton and the latter's girlfriend, Barbara Robertson. After Johnson was with Statton and Robertson at the pub, the parties all went to the home of Johnson and Bugera. While at the house, Johnson washed the Dodge car and Statton washed his truck. Johnson and Statton consumed some beer in the course of the afternoon and Ms. Bugera and Ms. Robertson apparently had one beer each. [3] Because July 14 was the birthday of Alan Robertson, a brother of Ms. Robertson, the group decided to invite him to join them at the house. Mr. Alan Robertson arrived shortly thereafter with his wife and child. The three men decided that they wished to get some liquor from a store located a few kilometres south of the residence at 150 Mile House. According to the evidence, both Mr. Statton and Mr. Robertson suggested that either of them would be willing to drive the group in their respective vehicles on the trip to get liquor but Johnson declined their offers and said that he wished to take the Dodge owned by Ms. Bugera. Accordingly, that was the vehicle in which the three men left from the house to get liquor. The Dodge was apparently a rather unique vehicle with high performance characteristics. I think it is a fair inference from the evidence that Mr. Johnson liked to drive it. One odd circumstance in the evidence was that Johnson testified at trial that just prior to them leaving the house, Ms. Bugera said to him words to the effect, "don't let Clint (Statton) drive the car". Johnson could not attribute any particular reason why she should say such a thing and Ms. Bugera denied in her evidence that she said this. [4] The store the men were going to was about five kilometres south of the Johnson house. In that vicinity there was a pub and the three men stopped for a drink at the pub before going on to get liquor at the general store. They remained in the pub for perhaps a half to three quarters of an hour. [5] A singular feature of the case is that because of severe injuries suffered in the accident, Statton has virtually no recall of events for several days prior to the accident and for some weeks after the accident. He has recovered to have some "flashbacks" about the trip which I shall refer to later in these reasons but for practical purposes his memory of relevant events is, he asserts, sparse almost to the point of non existence. No evidence exists to be adduced from Mr. Robertson because he was killed in this single vehicle crash. Therefore, of the three people who went on the trip to the store and pub, only Johnson can testify to the events of that evening. [6] Johnson said that while they were at the pub he had a couple of drinks. He said that as they left the pub he and Robertson lost sight of Statton briefly and he and Robertson went to the parking lot and got into the car. He testified that they saw Statton nearby and when they drove up to Statton who was by the side of the road, Statton said words to the effect, "I am not getting into the car if you are driving." Johnson said after a brief discussion he allowed Statton to drive and that he, Johnson, got into the back seat of the car. Because of the configuration of the car and the fact that Robertson had a cast on his leg, it was common ground that Robertson sat in the front passenger seat both on the trip to the store and the return trip when the accident happened. The car burned after the accident and Robertson was apparently trapped in the right hand front seat of the car and died in the fire. [7] Johnson said they drove to the store from the pub and then went into the store to get some liquor. After leaving the store they returned to the car in the parking lot. Johnson testified that at this point he was seated in the back, Robertson was seated in the right front seat, and Statton was the driver. Johnson said he recalled Robertson speaking to a woman outside the store just before they left for home. Johnson said his memory of events was sketchy immediately after the accident but he professed by the time of trial to have a substantial recall of events of the trip. [8] The evidence of Statton was that he had only very fragmentary recall about the relevant events. As a result of the accident, he received a very severe closed head injury and he was in a coma first at Williams Lake and then in a hospital in Vancouver for about three weeks. There was apparently some doubt immediately post accident as to whether he would live because of the severity of his injuries. Eventually, he regained consciousness and was able to be discharged from hospital. After leaving the hospital he remained at the GF Strong Rehabilitation Hospital for a few weeks but finding it a stressful place, he eventually returned home to Williams Lake. He and Ms. Robertson had resided in a common law relationship for some years prior to the date of the accident. Apparently, because of difficulties that arose between them, possibly because of his altered condition, they separated about 18 months after the accident. [9] By the time of trial, Statton said that a lot of his general memory going back to his childhood had returned but he had very little recall of the events of the day in question. All that Statton could testify about concerning the car trip was some "flashbacks" that he had. He said one flashback was of him sitting in the back seat of the Dodge passing cigarettes to Johnson and Robertson who were seated in the front. He had a second recollection of Robertson forcefully telling Johnson to slow down. He had a belief that both of these events occurred during the return journey shortly before the accident. He had a third recollection of endeavouring to get into the back seat of the Daytona while Robertson was seated in the front passenger seat and in the process striking his back on the seat belt assembly. Aside from these fragments he had no recollection of events on July 14, 1992. [10] The accident happened on Highway 97 at a location known as Sugar Cane Hill. An individual named Matherly who knew Statton as an acquaintance was driving south on the highway immediately prior to the accident. He observed the Dodge coming north towards him at an extremely high rate of speed. He could not recognize any of the occupants in the car. His brother, who was a passenger in the car, was not able to ascertain whether the occupants were male or female nor the colour of their hair due to the speed of the Daytona. A Mr. Price was driving south as well some distance behind the Matherly car and he observed the approaching Dodge which he thought was going at over 100 miles an hour. Mr. Price estimated that he was going south at 55 miles per hour. Accident reconstruction evidence indicated that the Dodge just before the accident was going at least 170 km. per hour. Mr. Price could not identify the individuals in the car but he thought one of them had long blond hair. In the front seat of the Price vehicle was Mrs. Spinks. She gave evidence at the trial. She observed the Dodge coming north around a curve at a high rate of speed and observed it go out of control and drift across the road sideways towards the car she was in. She believed that the car had gone into the ditch front end first but apparently accident reconstruction indicated it travelled into the ditch rear end first. The Dodge became airborne, hit a telephone pole and burned, causing the unfortunate death of Mr. Robertson. [11] Mrs. Spinks had not known any of the occupants of the Dodge prior to the accident. She advised the police she had observed the driver and felt she could identify the driver. Statton had been thrown out of the car upon impact and was lying on the ditch near the roadway in an unconscious condition when Mrs. Spinks first observed him after the accident. She identified him at the scene as the driver. Johnson had also been thrown free of the car into a field nearby. He was not discovered until some short time after the accident. Mrs. Spinks was taken by a police officer to the Cariboo General Hospital where the two injured men had been taken and there again she identified Statton as the driver of the car. [12] According to a video animation that reconstructed the accident, the period of time that Mrs. Spinks would have had the driver under observation with an opportunity to see the face of the driver might have been less than one second. Mrs. Spinks indicated that the driver had a laughing face and long brown, almost black, hair. Apparently both Statton and Johnson had long brown hair on the day in question and both were wearing whitish T-shirts and blue jeans. [13] A doctor and a nurse who were engaged in treating Johnson gave evidence about seeing marks on Johnson's chest indicative of "a steering wheel imprint". A police officer was called by the nurse to observe the chest of Johnson but he was not able to confirm this evidence of marks on the chest. [14] Statton was in a coma for all of the time he was at the Cariboo Hospital and for several weeks thereafter at Vancouver. Johnson had received serious injuries to his face and head - part of the flesh of his skull was "peeled back" but he apparently was conscious and reasonably well oriented immediately after the accident according to ambulance attendants and hospital personnel. [15] There was a curious feature surrounding the evidence of Mrs. Spinks. It is thus noted and narrated by the learned trial judge. [56] A bizarre contradiction in the evidence concerns the sobriety of Ms. Spinks. The evidence of Ms. Rutherford, a nurse, and Barbara Statton, Clint Statton's sister, testified that in their opinion Ms. Spinks at the time she was at the hospital reeked of alcohol and had obviously been drinking. This is sharply contrasted with Constables McTiernan and Hart who drove her in a police vehicle from the accident scene to the hospital, were with her at the hospital during the identification process, then sat with her in the RCMP office taking her detailed statement. Those experienced officers detected no odour of alcohol nor indication of intoxication. Ms. Spinks said in her evidence she had not had a drink in several years. [16] The judge inclined to the view that he should accept the evidence of a police officer that Mrs. Spinks was not affected by alcohol and I see no reason to differ from that assessment. [17] Ms. Robertson testified that she had known Johnson for several months prior to the accident and said that in that time she had never seen or heard of Johnson permitting anyone to drive the Dodge car owned by Ms. Bugera. She said that post accident, she spent several weeks attending at the hospital in Vancouver to be with Mr. Statton. Initially the physicians were unsure if he would even survive due to the seriousness of his brain injury. In the event he did survive and regained some long term memory, but as I earlier observed, he remains unable to recollect in any detail the events of the day of the accident. [18] Initially, Johnson was quite reticent in revealing to investigators who was driving the Dodge at the time of the accident. At trial, a witness named Ahlstrom was called to give evidence. He was related by marriage to Johnson. He testified to visiting Johnson at the hospital a few days after the accident. His evidence was a bit vague but he said that he passed on to Johnson the information that Statton was not likely to live, and he further said that he suggested to Johnson that Statton might be a good person to take the fall for being the driver. In view of the disastrous results of the accident, whoever was driving would be in a serious situation from both a civil and criminal perspective. [19] The trial judge found Johnson to be a credible witness and he concluded that the evidence established that Statton was the driver of the vehicle immediately prior to the accident. He recognized that the identification evidence from Mrs. Spinks was "slight" and said that it standing alone would be insufficient to make a determination upon. Counsel for the respondent Johnson submitted that the evidence might be "a comfort" to the trial judge but recognized the difficulties in laying particular stress upon this evidence. From the finding that he was the driver, Statton appeals to this Court. [20] Present in the area of the store where the liquor was purchased on the day in question was Ms. Simmons, a store attendant, and her mother, Mrs. McCarthy. Simmons sold the liquor to the men. Her mother was in the parking lot of the store when the group came out of the store. Mrs. McCarthy had some conversation with Robertson. She recalled him being in the front passenger seat but she could not recall the other two men getting into the car. The evidence of Miss Simmons, while to a degree uncertain, said that she watched the men leaving and was fairly sure that Johnson walked towards the driver's side of the car whereas Statton and Robertson walked towards the passenger side. She observed Robertson get into the front passenger side. She did not see the other two get into the car or observe the car driving away. The tenor of the evidence of Simmons would place Johnson as going towards the driver's side of the car and Statton going towards the other side. This witness recognized Johnson and Statton by sight. She observed her mother speaking to the man with the cast and her recollection was that she saw Johnson going to the driver's side of the car in the parking lot. [21] The bartender who had observed the three individuals at the pub immediately prior to them leaving to get liquor at the store had the impression that Robertson and Statton left the pub together and were followed a few seconds later by Mr. Johnson. The bartender acknowledged he had told the police he couldn't really recall them coming into the pub or going out. He explained in cross-examination what he meant was that he couldn't see them beyond the area of the doorway and wouldn't know whether one or the other got into the car at any particular time in the parking lot. The tenor of his evidence would seem to be out of accord with that of Johnson in that he suggested that Robertson and Statton left together whereas Johnson suggested that he and Robertson left together and somehow became separated from Statton. [22] The trial judge, as I earlier observed, concluded that Johnson was generally a credible witness. He said that he did not accept that Johnson was deliberately lying as to the events surrounding the change of drivers of the vehicle and the events immediately preceding the accident although he acknowledged that Johnson had been less than candid with the initial investigators on the case. Ultimately, after reciting that he had considered the evidence of all of the witnesses and the arguments, the learned trial judge concluded that it was more probable that Statton was the driver of the car at the time of the accident. [23] An appellant undertaking to attack findings of fact made by a trial judge faces a heavy burden in an appellate court. McLachlin J. said this in Toneguzzo-Norvell v. Burnaby Hospital. [1994] 1 S.C.R. 114 at 121: It is by now well established that a Court of Appeal must not interfere with a trial judge's conclusions on matters of fact unless there is palpable or overriding error. In principle, a Court of Appeal will only intervene if the judge has made a manifest error, has ignored conclusive or relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions from it: see P. (D.) v. S. (C.), [1993] 4 S.C.R. 141, at pp. 188-89 (per L'Heureux-Dub‚ J.), and all cases cited therein, as well as Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, at pp. 388-89 (per Wilson J.), and Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802, at pp. 806-8 (per Ritchie J.). A Court of Appeal is clearly not entitled to interfere merely because it takes a different view of the evidence. The finding of facts and the drawing of evidentiary conclusions from facts is the province of the trial judge, not the Court of Appeal. [24] It was observed by Ryan J.A. in this Court in the case of White v. T. Eaton Co. (1996), 84 B.C.A.C. 303 at 305: As long as the conclusion reached by the trial judge is supportable on the evidence, this Court will not intervene. [25] The case of Toneguzzo-Norvell involved a situation of conflicting expert witnesses and the Eaton case was one where there was conflicting testimony by witnesses who gave direct evidence of events. The case at bar is not so much a case of conflicting evidence but rather one in which there exists direct evidence, emanating from Johnson, and to a much lesser degree from Mrs. Spinks that Statton was the driver. Opposed to this is a body of circumstantial evidence that tends to establish that Johnson was the driver of the car at the time of the accident. Since I have concluded that I would order a new trial in this case, I do not want to deal with the evidence in any greater detail than necessary. [26] Substantially, the conclusion reached by the trial judge was based upon his acceptance of Johnson's credibility as a witness. Statton was the only other surviving occupant of the vehicle. He gave testimony but the trial judge concluded that his evidence contributed little to the task of determining who was driving at the time of the accident. Statton testified about the three "flashbacks" or recovered memories upon which he based his belief that Johnson was the driver at the time of the accident. [27] I have noted above, Statton at the date of the accident was living with Barbara Robertson who was the sister of Alan Robertson, the man killed in the accident of July 14, 1992. The relationship between Barbara Robertson and Statton broke up towards the end of 1993 about 18 months after the accident. Ms. Robertson and the appellant testified that the first flashback occurred about six months after the accident. That would have been towards the end of 1992. In this flashback Statton recalled passing cigarettes from the back seat to the occupants of the front seat. He said in his evidence he believed this took place on the return trip shortly before the accident. The second flashback came to him about a month later. Ms. Robertson and Statton said that this recollection involved him hearing Robertson in the front seat emphatically telling the driver, Johnson, to slow down. Statton maintained in his evidence that he believed this incident happened on the drive back to the residence from the store. The third flashback related to Statton's recollection of getting into the back seat of the Daytona and it being a tight fit to get by Robertson who was seated in the front with a cast. Statton said that he recalled hitting his back in the process. With regard to this latter flashback, he was uncertain as to whether that happened at the residence at 150 Mile House before the return trip. [28] It was the evidence of Ms. Robertson that at the time Statton related these incidents to her he was unable to remember whether the respective memories were of events on the way to the store or whether it was prior to leaving on the return from the store. She was thus unable to confirm Statton's belief in this respect concerning when in the course of events these matters occurred. The judge found Ms. Robertson to be a credible witness. After noting that he sympathized with Statton's desire to try to wish to believe that these events occurred as he said he now remembered at trial, he said that he preferred Ms. Robertson's narrative to the effect that Statton could not honestly relate the recollections to either the trip to the store or the return trip. [29] In this analysis, it appears to me that the trial judge is rejecting Statton's sworn evidence in court and preferring the evidence given by Ms. Robertson that at the time when he initially had the flashbacks, he could not recall the crucial element of the place or places where the respective incidents occurred. Significantly, Ms. Robertson's relationship with Statton having broken up, she could not say whether his memory had improved in the period that had elapsed from the time they separated to the date of trial. [30] Of the three incidents, only the incident about the admonition to slow down could be said to be clearly related to the manner in which the vehicle was being operated. The trial judge did not distinguish this incident from the other two incidents. Given the speed of the vehicle reached on the homeward journey, confirmed by accident reconstruction and direct observations of other witnesses, and the absence of any suggestion of speed in the other two flashbacks, it seems more probable than not that this incident involving the admonition to slow down, must have occurred shortly prior to the accident. [31] The trial judge in commenting on the evidence of Statton at paragraph [46] noted that Statton had an interest in believing or hoping that he was not the driver of the car "and the tendency he might have to interpret any recollection he might have in support of that position". It is not clear to me that he made any like analysis in respect to the respondent Johnson. It is by no means clear that he weighed Johnson's interest in establishing Statton as the driver and the tendency that he, Johnson, would have to see things in light of that interest. He touches in his reasons on the reticence that Bugera and Johnson manifested initially in their discussions with police and ICBC investigators concerning who was the driver on the day in question, but he does not appear to give a great deal of weight to the fact that Johnson was not then forthcoming about who was driving. There was a considerable body of evidence that Johnson was not disoriented or lacking in alertness soon after the accident and it is thus a matter of great suspicion as to why he was not forthcoming about the fact that he was not the driver if that was the real situation. As it was in Statton's interest to assert that he was not the driver, so too it was in Johnson's interest to assert that he was not the driver at the time of the accident. [32] It seems to me that there was a body of circumstantial evidence pointing in the direction of Johnson being the driver. He was quite possessive of the Dodge car and seemed to like to drive it. It seems odd that, having rebuffed the suggestion by both Robertson and Statton that they could use their respective vehicles to go on the trip and insisting on driving the Dodge to get to the liquor store, Johnson would then readily acquiesce in allowing Statton to drive the Dodge on the way home. I have already referred to the evidence of Simmons and McCarthy concerning their observations in the area of the store. I will have more to say about the serious speeding record of Johnson later in these reasons but that is another factor that is rather more consistent with him being the driver than with Statton being the driver. These are some of the factors in what I might term the internal circumstances of the case that point towards Johnson and away from Statton. [33] This is a case in which I think the comments of O'Halloran J. in the of cited case of Faryna v. Chorny (1951) 4 W.W.R. (N.S.) 171 at 174 are apposite: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a court satisfactorily appraise the testimony of quick- minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial judge to say "I believe him because I judge him to be telling the truth," is to come to a conclusion on consideration of only half the problem. In truth it may easily be self- direction of a dangerous kind. The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial judge with a divine insight into the hearts and minds of the witnesses. And a court of appeal must be satisfied that the trial judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case. Mr. Justice Stephen put it another way: He said (General View of the Criminal Law, 1890, p. 191): "* * * that the utmost results that can in any case be produced by judicial evidence is a very high degree of probability * * * . The highest probability at which a court of justice can, under ordinary circumstances, arrive is the probability that a witness or a set of witnesses tell the truth when they affirm the existence of a fact." There is high authority to support the foregoing, namely, a case in the House of Lords in 1933 to which Lord Greene, M.R. referred in Yuill v. Yuill [1945] P 15, 114 LJP 1, and described it as inadequately reported. The case was Hvalfangerselskapet Polaris v. Unilever Ltd. (1933) 46 Ll L Rep 29, 39 Com Cas 1. In that case the trial judge had disbelieved material witnesses and found that their evidence was invented on the spur of the moment. In the Court of Appeal Scrutton, L.J. giving the leading judgment said the trial judge had seen the witnesses and heard the conflicting testimony and because of that it was impossible for the Court of Appeal to interfere with the trial judge's finding on credibility. But the House of Lords did interfere. It said that the strictures cast by the trial judge on the two witnesses were unjustified and that the evidence of these two witnesses ought to have been received. The House, Lord Atkin presiding, came to that conclusion because it was satisfied that the evidence of the witnesses disbelieved by the trial judge was entirely consistent with the probabilities and the business conditions proved to be in existence at the time. (Emphasis mine). [34] In a case like this where a great deal of the circumstantial evidence is at odds with Johnson's direct evidence, I believe it was incumbent on the trial judge to take his analysis one step further in the manner suggested in the above passages. [35] It appears to me that if this further analysis had been taken in this case, it may well have been that the learned trial judge would have reached a different conclusion. It seems to me it could be fairly suggested that the evidence of Johnson concerning who was driving at the relevant time was "out of harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable" concerning who was the driver of the car just prior to the fatal accident. As I earlier observed, this was not a case of conflicting evidence given under oath by different parties or interests but rather was a case in which substantially the only viva voce evidence concerning the state of events had to be weighed against a body of circumstantial evidence rather at odds with that testimony. Thus, cases that speak of the unique advantage of the trial judge in viewing witnesses have perhaps less applicability in a situation like the instant one. [36] I turn now to another matter that arose in the case and that I consider militates in favour of an order for a new trial. In the course of the trial, counsel for the appellant sought to lead evidence concerning the respondent Johnson's driving record. There was some objection raised, although counsel for the respondent Johnson appears not to have objected to the evidence going in on the basis of credibility. The matter was not really argued at any great length although one of the trial counsel who was effectively coincident in interest with counsel for Statton, the appellant, submitted as follows: The evidence from the witness himself is the vehicle was going at speeds in the order of 200 km per hour so clearly speed is a factor in this accident and it is my friend's position that Mr. Johnson was the driver. I submit his driving record, particularly with reference to speeding offences is relevant. (Emphasis mine). [37] Without further argument, the court simply ruled that it would allow the cross-examination to continue on this subject. [38] In his reasons for judgment at para. [30], His Lordship said this concerning the respondent Johnson: His prior driving record was tendered in regard to his credibility. It is not suggested there is any basis for a similar act analysis and indeed there is none. [39] With respect, it seems to me that there does exist a very substantial basis for a similar act analysis on the facts of this case. [40] It must be remembered that what was at the heart of this case and the issue being litigated was the question of who, on a balance of probabilities, was the driver of the car that was involved in the fatal accident. In other words, the central issue was a question of identity. "Similar facts" or "similar acts" is a much discussed principle in the law of evidence, particularly in its application in the criminal law. A case often referred to as a starting point in such an analysis is Makin v. Attorney- General for New South Wales, [1894] A.C. 57. Although Makin, often referred to as the baby farming case, is perhaps the most well known and a leading case in the area, the principle upon which it is based is older and lies much deeper in the law. One starts with the proposition that all relevant evidence is admissible. Of course, some "relevant evidence" may be rather marginal and such evidence can also be highly prejudicial. The rule of evidence preventing rebuttal of collateral fact evidence is one device employed by courts to avoid the admission of evidence that may be tangentially relevant but would lead to a great expansion of time taken in trials. The courts have also exercised a jurisdiction to avoid the introduction of highly prejudicial but marginally probative evidence, especially in jury trials, in order to prevent the misuse of evidence by the trier of fact. [41] But I return to the proposition that evidence is adduced in a trial to prove a fact or facts in issue. In assessing the admissibility of evidence, lawyers and judges ask themselves the question, is this evidence probative of a fact in issue and hence relevant? Subject to other exclusionary rules like the hearsay rule, if those queries be answered in the affirmative, then the evidence is prima facie admissible at a trial. [42] In Makin's case, the evidence was admitted to rebut a defence otherwise open, namely the defence of accident. The bodies of a number of deceased children had been found in the yards of homes formerly occupied by Makin and his wife. The allegation of the Crown was that they had been engaged in taking in infants and getting a reward from the parents to look after the children and then either killing the youngsters or allowing them to die by starvation and neglect. It would seem unlikely in human experience that a number of young children would die from natural causes. Makin was usually reckoned to be authority for the proposition that such evidence was allowable to rebut potential defences such as accident, mischance and the like. I would have thought that the evidence tendered in the Makin case tended also to show that the dead children were somehow killed by the agency of the accused. In other cases, similar act evidence has been admitted to show a course of conduct to establish that someone was knowingly fraudulent in a course of conduct. [43] The case of Thompson v. The King, [1918] A.C. 221 held that evidence showing propensity was admissible to prove the identity of an individual suspected of molesting children. Proof of possession by the appellant of certain items was held to furnish evidence supporting the proposition that because these items indicated a propensity towards a certain activity, they could be used to confirm evidence that identified the appellant with the crime he was charged with, molesting young boys. Lord Atkinson in giving judgment in the case said concerning the evidence at p. 230: ... I think they belong to the class of evidence mentioned by Lord Herschell in Makin's Case, namely, evidence designed and intended to rebut a defence which would be otherwise open to the accusedÄÄin this case an alibi for March 16. [44] Lord Sumner said at p. 234: ... The principles on which the admissibility of evidence of identification rest are in no need of restatement. Indeed, new formulae on so trite a topic may tend to introduce qualms or doubts. The question is always not so much what is proved as what it proves. All lawyers recognize, as part of their professional premises, that there is all the difference in the world between evidence proving that the accused is a bad man and evidence proving that he is the man. ... There must be something to connect the circumstance tendered in evidence, not only with the accused, but with his participation in the crime. [45] I doubt that there is any difference between admissibility of evidence in civil and criminal cases, with the possible exception that in the latter class of case, particularly cases tried before a jury, there may be a heightened concern that potentially prejudicial evidence not be placed before the trier of fact unless it has significant probative value. In the case of Anderson v. Maple Ridge (1992), 71 B.C.L.R. (2d) 68 at p. 75, Wood J.A., giving the judgment of the court, briefly adverted to the subject: There is no doubt that a judge trying a civil case in Canada has a discretion to exclude relevant evidence on the ground that its prejudicial effect outweighs its probative value: Draper v. Jacklyn, [1970] S.C.R. 92, 9 D.L.R. (3d) 264, per Spence J. at pp. 96-97 [S.C.R.]. What is less clear is under what circumstances that discretion should be exercised. There is a paucity of jurisprudence on the subject. Counsel did refer us to a 1975 English Court of Appeal decision in Mood Music Publishing Co. v. De Wolfe Ltd., [1976] Ch. 119, [1976] 1 All E.R. 763, where Lord Denning M.R. said this at p. 766 [All E.R.] in connection with the admissibility of similar fact evidence in that case: The admissibility of evidence as to "similar facts" has been much considered in the criminal law. Some of them have reached the highest tribunal, the latest of them being Boardman v. Director of Public Prosecutions. The criminal courts have been very careful not to admit such evidence unless its probative value is so strong that it should be received in the interests of justice: and its admission will not operate unfairly to the accused. In civil cases the courts have followed a similar line but have not been so chary of admitting it. In civil cases the courts will admit evidence of similar facts if it is logically probative, that is if it is logically relevant in determining the matter which is in issue; provided that it is not oppressive or unfair to the other side; and also that the other side has fair notice of it and is able to deal with it. To the extent that this passage suggests there is a more narrow discretion to exclude prejudicial evidence in civil cases than exists in criminal cases, it would appear to be at odds with the situation in this country where the broad scope of the discretion suggested by Spence J. in Draper v. Jacklyn, supra, stands in contrast to the very narrow discretion to exclude described in the decision of the Supreme Court of Canada a year later in R. v. Wray, [1971] S.C.R. 272, 11 C.R.N.S. 235, [1970] 4 C.C.C. 1, 11 D.L.R. (3d) 673. [46] In that case, Mr. Justice Wood also made reference at p. 77 to the earlier case of MacDonald et al. v. Canada Kelp Company Ltd. et al. (1973), 5 W.W.R. 689, a judgment of this court. The headnote of that case reads as follows: Appellants sought to rescind a contract for the sale of shares on the ground of fraudulent misrepre- sentations made to them by two officers of the company concerned, which representations, they alleged, induced them to buy the shares. They proposed to call evidence of witnesses to whom, at or about the same time, similar representations had been made by the same two officials, for the purpose of showing that the representations allegedly made to the appellants had, in fact, been made. The trial Judge ruled that the proposed evidence was inadmissible. Held, the trial Judge was in error in ruling as inadmissible evidence of representations made to others similar to the representations which appellants alleged had been made to them. Such evidence was relevant to the question whether the defendants, respondents, had actually made to the plaintiffs, appellants, representations which they relied on to prove their case: Blake v. Albion Life Assur. Society (1878), L.R. 4 C.P. 94; Regina v. Leforte (1961), 36 C.R. 181, 131 C.C.C. 169, 31 D.L.R. (2d) 1 (Can.) applied. The trial Judge found as a fact that the appellants had not relied on the misrepresentations and his finding should not be disturbed. Rule 34 of the Court of Appeal Rules accordingly applied and the appeal should be dismissed. [47] In his judgment, Bull J.A. said this at pp. 698-700: The principal question, therefore, to be determined is ÄÄ and this was the gravamen of the able arguments before us ÄÄ does the law permit evidence of similar acts or similar facts at another time being introduced as proof that an act or fact in issue occurred. It was common ground that the principles governing the admissibility of such evidence, although most frequently applied in criminal cases, have equal application to both civil and criminal proceedings: see Phipson on Evidence, 11th ed., para. 494, p. 494. Nor was it disputed, as in my opinion it could not be, that those principles and the basic rules applicable are set out in the leading authority of Makin v. Attorney General of New South Wales, [1894] A.C. 57. The following language of Lord Herschell L.C. has long stood approved by the House of Lords in England and by the Supreme Court of Canada. He said at p. 65, with respect to the admissibility of evidence of similar acts: "In their Lordships' opinion the principles which must govern the decision of the case are clear, though the application of them is by no means free from difficulty. It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. 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. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other." The test is essentially one of relevancy, and although it cannot be validly said that the principles he outlined have been later modified or extended, it is plain that Lord Herschell L.C. was giving examples of purposes for which the evidence might be relevant and admissible and was not endeavouring to formulate an exhaustive list. In Harris v. Director of Public Prosecutions, [1952] A.C. 694, 36 Cr. App. R. 39, [1952] 1 All E.R. 1044, Viscount Simon (with whom all of the other Law Lords save one agreed) in his speech said with reference to Makin: "It is, I think, an error to attempt to draw up a closed list of the sort of cases in which the principle operates. Such a list only provides instances of its general application, whereas what really matters is the principle thereof and its proper application to the particular circumstances of the charge that is being tried", and again: "... evidence of 'similar facts' should be excluded unless such evidence has a really material bearing on the issues to be decided." When there is a real and substantial nexus or connection between the act or allegation made, whether it be a crime or a fraud (but not, of course, limited to those), and facts relating to previous or subsequent transactions are sought to be given in evidence, then those facts have relevancy and are admissible not only to rebut a defence, such as lack of intent, accident, mens rea or the like, but to prove the fact of the act or allegations made. The respondents submit that that is not so, and "similar acts" are never admissible to prove the doing of the act itself. I cannot agree. In Rex v. Ball, [1911] A.C. 47, the evidence of previous sexual intercourse and its result was allowed in evidence to show that the intercourse charged took place. Lord Loreburn L.C. said at p. 71, after referring to Makin with approval: "... the question is only of applying it. In accordance with the law laid down in that case, and which is daily applied in the Divorce Court, I consider that this evidence was clearly admissible on the issue that this crime was committed ÄÄ not to prove the mens rea ... but to establish the guilty relations ... and the existence of a sexual passion between them as elements in proving that they had illicit connection in fact on or between the dates charged ... "... but here I think the evidence went directly to prove the actual crime for which these parties were indicted." That view has been adopted in this Court and the Supreme Court of Canada. In Regina v. Leforte (1961), 36 C.R. 181, 131 C.C.C. 169, 31 D.L.R. (2d) 1, the Supreme Court of Canada unanimously accepted the dissenting judgment of Sheppard J.A. of this Court, 35 C.R. 227, 130 C.C.C. 318, 28 D.L.R. (2d) 459, stating: "We are in complete agreement with the reasons of Sheppard, J.A. except that it is unnecessary for us to deal with his finding that there has been no substantial wrong or miscarriage." Sheppard J.A. had said, in a murder case where evidence was introduced of previous continuous enmity of the accused towards a deceased infant with whose death the accused was charged but who denied any participation, that such evidence was admissible as proof, not merely of his malicious mind "but of the fact that he killed him", and cited in support Rex v. Ball, supra. The same view has been taken by this Court in Low-Beer v. Imperial Investment Corpn. Ltd., 23rd September 1964 (not yet reported). Although that case involved only an interlocutory appeal with respect to the refusal to answer questions on discovery relative to a previous fraudulent happening in the same mode and manner as the alleged fraud, the subject matter of the action, the Court held that it was quite proper in such a fraud case to show by proof similar, fraudulent transactions which, under the circumstances, were clearly relevant to the issue in litigation. [48] In this case, a combination of speeding infractions admitted by the respondent Johnson in cross-examination at trial coupled with a transcript of his driving record that was filed establish that he had amassed a great number of speeding convictions between 1989 and 1997. As I counted them, there are over 25 of these infractions. The great majority of these occurred between 1989 and 1994. A large number of the offences involved highway speeding. As noted by the trial judge, Johnson was under a driving suspension at the time of the accident. This accident occurred as a result of a vehicle being driven at a very excessive rate of speed. The respondent Johnson has a remarkable record for this sort of conduct. I do not overlook the fact that Statton had some speeding convictions as well but his record is of a different order entirely from that of Johnson. It seems to me that it could justly be said that this very substantial history of speeding on the part of Johnson could be found to have probative force and be a highly relevant matter for a trier of fact to assess in deciding the question at issue in this case, namely, who was the driver of the Dodge car at the time of the accident? I find it impossible to say as a matter of logic that this would not be a matter potentially probative on this matter. While the record is one arguably demonstrating "bad conduct" of Johnson as a driver, it also could be reckoned to be highly probative of the fact that he was more probably the driver of the Dodge at the relevant time. I believe that a trial judge could and should undertake a similar act analysis in deciding this case. There is a recent Supreme Court of Canada case, R. v. Arp (1998), 129 C.C.C. (3d) 321, wherein similar acts were held to be possibly probative of identity. If evidence of another event or events provides a hallmark of identity, then that evidence may be admissible on the issue of whether or not an individual did the act under investigation. [49] In Arp, at p. 344, we find the following observation: ... where similar fact evidence is adduced to prove a fact in issue, in order to be admissible, the trial judge should evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established. Only then will the evidence have sufficient probative value to be admitted. [50] Such an assessment is, of course, for the trial judge to make but this assessment was not undertaken in the case at bar. I should note that it appears to me, in fairness to the learned trial judge, that this argument concerning similar acts was not well developed in the court below. In the transcript, there was certainly a suggestion by one of the counsel when the subject first arose that a similar fact analysis could be made but how clearly this was brought home to the learned trial judge later in argument remains cloudy on the state of the record before us. I believe that because the learned trial judge, for whatever reason, did not consider this aspect of matters in reaching his decision, there was a vital omission in this case to consider and assess a body of relevant evidence concerning the issue of who was driving the vehicle. [51] Given my conclusion about this aspect of the trial and because of the considerations I have adverted to earlier in these reasons, I consider that a new trial should be ordered. Accordingly, I would allow the appeal and order a new trial. "The Honourable Mr. Justice Hall" I AGREE: "The Honourable Mr. Justice Goldie" I AGREE: "The Honourable Mr. Justice Donald"