R. v. Smaaslet

2003BCSC1515

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Smaaslet, 2003 BCSC 1515 Date: 20030722 Docket: 12574-2 Registry: Prince George

REGINA v.

GERALD SMAASLET Before: The Honourable Madam Justice Loo Oral Reasons for Judgment Ruling on Voir Dire July 22, 2003 Counsel for the Crown: S. Keyes Counsel for the Accused: S. Goldberg Place of Trial: Prince George, B.C. [1] THE COURT: The Crown seeks to introduce on the basis of similar fact evidence, the evidence of I.C. [2] C.K, the complainant in this case, testified that shortly after she began a romantic relationship with the accused, the accused became abusive and, more particularly, used knives which he slid into the door frame to prevent her from being able to leave the Robin Motel. [3] I.C. gave evidence that sometime in 1987 or 1988 she entered into a romantic relationship with the accused and within about six weeks of the relationship he became abusive and wouldn't allow her to leave the premises. He restrained her by putting knives into the door frame in four places, two on the top of the frame and two on the sides. [4] Crown relies on the most recent case dealing with similar fact evidence, the Supreme Court of Canada decision in October 2002 in R. v. Shearing, [2002] S.C.J. No.

59. The Crown argues that I.C.'s evidence speaks directly to the issues to be determined on this trial; that her evidence was very cogent; and that therefore the court should admit it as being more probative than prejudicial. [5] I am however concerned with these circumstances, and that is, in June 1990 at the accused's preliminary hearing into charges laid by I.C., she testified at length and there was no mention of knives in her evidence. I.C. also testified in the trial before Mr. Justice Meiklem last October. That trial, I am told, resulted in a mistrial. In any event, in the voir dire before Mr. Justice Meiklem, I.C. made no mention about the incidents involving the use of knives by the accused. [6] Today I.C. gave evidence that after she testified before Mr. Justice Meiklem, she heard discussions between counsel and the court involving the use of knives. I.C. says the discussion in open court with respect to knives triggered her memory that that was something the accused always did when they were together. She then brought it to the attention of the prosecutor, and a couple of months later, the police came and took a statement from her. [7] While it may be that I.C. over the years has tried to put behind her the details of her relationship with the accused, I am not satisfied that the evidence meets the test of reliability, which is something the trial judge must always be concerned with, particularly when dealing with similar fact evidence. Similar fact evidence is an exception to the rule that evidence relating to an accused's disposition will generally be excluded. [8] On that basis, I rule that the evidence of I.C. is inadmissible. "L.A. Loo, J." The Honourable Madam Justice L.A. Loo