This week’s top three summaries: R v Tsigirlash, 2019 ONCA 650, R v Coluccio, 2019 ONSC 4559, and R v S, 2019 ONSC 4650.
R v Tsigirlash (ONCA)
[Aug 9/19] Using Evidence Across Charges without a Similar Fact Application - 2019 ONCA 650 [Reasons by B. Zarnett J.A. with K. Feldman J.A. and David M. Paciocco J.A. Concurring]
AUTHOR’S NOTE: The law around similar fact applications applies whether the Crown, defence, or in this case, the Justice, are aware of its intricacies or not. Undoubtedly, it is a complicated area and answers are often unclear. Nonetheless, the judge has to wrestle with the concept when it comes up with the aid of counsel submissions. Here, the judge seems to have forgotten that a Crown application for similar fact admissibility was a precondition for his consideration of it.
Pertinent Facts
"After a June 2011 police investigation, the appellant was charged with 47 offences. Forty-four of the charges alleged possession of stolen property, and three alleged fraud over $5000. Fourteen of the stolen property charges involved possession of stolen vehicles; the balance alleged possession of stolen car parts. The fraud charges alleged the appellant had defrauded three different individuals by selling them automobiles that contained stolen parts." (Para 2)
"Neither before trial, during trial, nor in closing argument was there any request by the Crown for the admission or use of evidence on any individual count as similar fact evidence on the other counts." (Para 5)
"The trial judge delivered written reasons on June 22, 2015, more fully explaining the result he had reached. In those written reasons, the trial judge stated that he would use "evidence across counts as similar fact evidence". His written reasons indicate that he did so." (Para 7)
"Nonetheless, the trial judge stated early in his written reasons that he would apply evidence across counts as similar fact evidence:
I propose to use evidence across counts as similar fact evidence on the issue of whether the accused knew that an item in his possession was stolen. It is easier to possess a small amount of stolen property unknowingly than a large amount. Evidence of possession of large amounts of stolen property could make it more probable that the accused knew that the inventory he had consisted of stolen property. Using the evidence across counts for that purpose would provide evidence that is sufficiently probative to outweigh its prejudicial effect. It is relevant and probative without resort to propensity reasoning. The acts that are the subject matter of the evidence are sufficiently similar to be probative of knowledge. In possession of stolen property cases, other acts of possession of stolen property are a classic use of similar fact evidence on the issue of knowledge." (Para 12)
Similar Fact: Use of Evidence Across Counts
"The general rule is that evidence of the accused’s discreditable conduct is inadmissible, unless that conduct is the subject-matter of the charge in question: Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018), at §11.1. This general rule operates both as a pure rule of admissibility and as a rule of restricted admissibility. When the proposed evidence relates to extrinsic misconduct — discreditable conduct for which the accused is not charged — the rule determines whether that evidence will be heard. When the request is to use evidence already admissible on one count to prove a separate count, the rule operates as a rule of restricted admissibility: the already-admitted evidence can be used only on the count to which it relates. In other words, evidence against an accused on one count of an indictment may not be used to prove the guilt of the accused on another count, unless the counts arise out of the same events: David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 88." (Para 23)
"The general inadmissibility rule will not apply where the evidence of discreditable conduct meets the test for similar fact evidence. But, importantly, there are a number of steps that must occur, and a number of factors that must be considered, before the similar fact evidence test is met and evidence on one count can be applied to others or evidence of extrinsic misconduct can be admitted at all." (Para 24)
"These steps and factors are critical because similar fact evidence is presumptively inadmissible, whether the evidence of similar acts is evidence of other counts in the indictment or is evidence of extrinsic misconduct: R. v. MacCormack, 2009 ONCA 72 (CanLII), at para. 48." (Para 25)
"There are certain consequences to this presumptive inadmissibility. The first is that when the Crown wishes that presumptive inadmissibility to be displaced, it bears the onus of satisfying the trial judge that, on a balance of probabilities, the probative value of the evidence on a particular issue outweighs its prejudicial effect in the context of the case, and thus justifies its reception: MacCormack, at para. 48; R. v. Handy, 2002 SCC 56 (CanLII), [2002] 2 S.C.R. 908, at para. 55. The second consequence is that, to determine whether the Crown has met its onus to admit similar fact evidence, the court is to conduct an inquiry, often termed an admissibility inquiry[4], focusing on the acts themselves: MacCormack, at paras. 52, 57.[5](Para 26)
"It follows from the existence of an onus on the Crown to displace presumptive inadmissibility, and from the very notion of an admissibility inquiry, that a request by the Crown for similar fact treatment is a precondition to that treatment being given to evidence. The presumption and onus would lose their meaning, and an admissibility inquiry informed by the submissions of Crown and defence would not be possible, if a Crown request in some form were not made." (Para 27)
"The probative value part of the inquiry has two aspects. The first aspect addresses the logical “nexus established between the evidence of similar acts and the offence that the evidence is offered to prove”: MacCormack, at para. 49. Where the logical nexus depends on the similarity of the similar acts to the act charged, the probative value of the evidence will increase with the degree of similarity, because the probability that the similarity is a result of coincidence will decrease. The court must be satisfied that the “objective improbability of coincidence” has been established: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 48. This analysis cannot be done in the abstract, but only on the basis of specifically-identified similar acts." (Para 29)
"Buttressing the requirement to specifically identify the similar acts is that the similarity analysis is conducted taking into account the specifics of the case and of the offence to which the evidence is sought to be applied. Factors such as proximity in time and place, similarity in detail and circumstances, number of occurrences, and distinctive features unifying the occurrences will all be considered in determining whether the evidence has the requisite degree of similarity to the offence charged under the circumstances: MacCormack, at para. 53; Handy, at para. 82." (Para 30)
"The degree of similarity required for admission in a particular case will be determined by the issues in the case, the purpose for which the similar fact evidence is being tendered, and the other evidence tendered in the case: Handy, at paras. 76-80." (Para 31)
"The second aspect of the court’s probative value analysis is the linkage inquiry. There must be a demonstrated link between the accused and the alleged similar acts as a precondition to admissibility: MacCormack, at para. 59. There must be “some evidence” that links the accused to the acts: Arp, at paras. 54, 56." (Para 34)
"In the next part of the admissibility inquiry, the court assesses the proposed evidence’s prejudicial effect. It must do so in light of the proposed similar acts and the purpose of introducing evidence of them. The defined acts and purpose inform the court’s consideration of the two types of prejudice that evidence of similar acts tends to carry: “moral prejudice” and “reasoning prejudice”. Moral prejudice refers to the risk that the accused will be stigmatized as a bad person and convicted on that basis. Reasoning prejudice includes the risk that the trier of fact will be distracted from their proper focus on the offence(s) charged, including because they may be confused by evidence of multiple incidents or may put more weight than is logically justified on the similar fact evidence, and the risk that unwarranted trial time will be consumed: MacCormack, at para. 55; R. v. T.B., 2009 ONCA 177 (CanLII), 95 O.R. (3d) 21, at para. 26. The specific acts, the purpose of introducing evidence of them and the inferences sought to be drawn from that evidence are fundamental to this assessment." (Para 35)
"These principles are not affected by the fact that a case is being tried without a jury, nor by the fact that in a multi-count situation, the issue is not whether evidence will be heard at all, but to what use it will be put....To be sure, some of the factors in the analysis relevant to an assessment of prejudice may have an attenuated influence in cases where the similar acts are restricted to other counts in a multi-count indictment, especially where the case is tried by a judge sitting alone. In such cases, the risks of moral prejudice and reasoning prejudice are significantly diminished: MacCormack, at paras. 56, 68-69; T.B., at paras. 26-28, 31." (Para 38)
"The fact that the similar fact evidence related to other counts in the indictment and the trial was by judge alone — matters that attenuated any prejudice arising from the admission of the similar fact evidence — is not determinative when the Crown has not asked for similar fact treatment. To hold otherwise would be to do away with the presumptive inadmissibility of such evidence and the onus on the prosecutor to overcome it, and to replace it with a rule that such evidence is admissible in a judge-alone, multi-count case. The law does not permit that conclusion: R. v. Handy, at para. 55, MacCormack, at para. 48, R. v. Arp, at para. 40." (Para 43)
Application to the Facts
"The trial judge's consideration of probative value (namely, similarity and linkage) and of prejudice did not have the benefit of a clear articulation by the Crown of the exact acts claimed to be similar, the issue on which evidence of those similar acts was to be used, and the inferences the evidence was said to support. It also did not have the benefit of any submissions by the defence. As set out above, both an identification of the acts said to be similar, and a clear articulation of the purpose for which the similar fact evidence is to be used are central to the admissibility inquiry. They determine and delimit the acceptable use to which admissible similar fact evidence may be put." (Para 49)
"Moreover, despite describing the issue and inference for which he intended to use the cross-count evidence, the trial judge did not limit his use to that issue. In my view, the Crown's own description on appeal of the use to which the trial judge put the evidence across counts better captures the way it was used. Namely, it was used to support an inference that the appellant was engaged in a business of dealing in stolen vehicles and parts, which had a certain method of operating, including procuring wrecks, removing VINs from them and attaching them to stolen vehicles." (Para 51)
"Two problems are revealed by the use of the evidence across counts for that purpose. First, the similar acts seemingly identified by the trial judge in his admissibility analysis were expanded beyond the presence of stolen vehicles and parts referred to in the counts to include evidence about the way in which the vehicles or parts in various counts appeared, what had been done to them, by whom and for what purpose. Second, the trial judge went beyond the issue and inference he stated in his admissibility analysis to draw a different inference. The trial judge did not indicate how he considered the probative value and prejudice aspects of the admissibility inquiry for that expanded set of acts or for that different purpose and different inference, let alone how he satisfied himself the test was met. I therefore agree with the appellant that the trial judge's consideration of the elements of the admissibility test was flawed." (Para 52)
"The Crown also contends that any errors made by the trial judge in his use of similar fact evidence can be cured. I do not agree that the curative proviso in s.686 (1) (b) (iii) of the Code can be invoked in this case. The relevant principles were recently set out in R v. R.V., 2019 SCC 41. The majority stated, at para 85, "The curative proviso set out in s. 686(1) (b)(iii) may be applied where there is no 'reasonable possibility that the verdict would have been different had the error ... not been made'...Applying the curative proviso is appropriate in two circumstances: (i) where the error is harmless or trivial; or (ii) where the evidence is so overwhelming that the trier of fact would inevitably convict" (internal citations omitted)." (Para 63)
Appeal allowed (Para 67)
R v Coluccio (ONSC)
[Aug 1/19] Charter s.8 - Search Warrants - Confidential Informant Test & Assumptions About Human Behaviour - 2019 ONSC 4559 [J. Di Luca J.]
AUTHOR’S NOTE: Here, Justice Di Luca, grappled with a weak warrant based on a single confidential informant. Problematically, the CI did not provide information related the the residence which was ultimately searched. The police sought to bridge the gap between the lack of relevant surveillance and CI information by reference to what a person would normally do if there were using a gun to protect themselves. They were unsuccessful in this attempt on review of the warrant.
Pertinent Facts
"Nicola Coluccio is charged with a number of firearms offences stemming from the warranted seizure of a firearm and ammunition at his residence on May 25, 2017. He challenges the search warrant that was obtained to search his residence and argues that the warrant should be quashed and the evidence excluded." (Para 1)
"In particular, the applicant argues that the ITO is based on information provided by a single Confidential Human Source ("CHS"), and that the information is neither credible nor sufficiently corroborated. Further, the defence argues that the affiant failed to make full, fair and frank disclosure in the ITO." (Para 3)
"On May 25, 2017, the applicant was observed driving the Porsche Cayenne at a location in Vaughan. He was placed under arrest and searched. Police found $1,370 in cash in his front right pant pocket. Police also found keys for the applicant's home in a cup holder in the vehicle. Police did not find any of the items they were looking for." (Para 7)
"Police later attended at the applicant's home and found a .38 calibre revolver in a shopping bag concealed in a suspended ceiling tile in the basement of the home. The bag also contained 50 rounds of ammunition. Police also located over $400,000 in cash, as well as some diamonds. Lastly, police located documents linking the applicant to the residence." (Para 8)
The Warrant
"In the vetted and disclosed portion of the ITO, the affiant indicated that the CHS advised police of the following:
a. That a person known as Nick Coluccio was in possession of a black semi-automatic handgun;
b. Nick Coluccio was described as male, white, in his 60's, 5'9" in height, with a medium build, dyed black hair and a black moustache;
c. Nick Coluccio was seen in possession of this firearm as well as a black revolver on several occasions over the past year;
d. Nick Coluccio drives a grey Porsche Cayenne and resides in Woodbridge;
e. The firearm is kept in the Porsche Cayenne operated by Nick Coluccio;
f. Nick Coluccio killed his own sister when he learned that she had been dating a black man;
g. Nick Coluccio is part of the Calabrian mafia; and,
h. There are currently tensions between the Calabrian and Sicilian mafia. These tensions are a spillover of events that occurred in Montreal." (Para 10)
"A more detailed recital of information received from the CHS was contained in Appendix D to the ITO. That appendix was redacted to protect that identity of the CHS. A judicial summary provided to the defence as part of the Step 6 process reveals the following additional information:
...
e. The CHS indicated that they had seen the applicant also in possession of a black revolver of unknown calibre;
...
g. The CHS indicated that the applicant is crazy and likes to show off his gun; and,
h. There is no information attributed to the CHS about seeing or not seeing a firearm at the applicant's residence." (Para 11)
"In this regard, the affiant notes that the CHS indicated that the applicant retrieved a firearm on multiple occasions from the Porsche Cayenne. The Porsche Cayenne had been reported to have been involved in an accident on April 17, 2017. Surveillance revealed that the applicant was thereafter seen driving two other vehicles, a Mazda and an Infiniti QX6." (Para 17)
"In relation specifically to the presence of the firearm and/or related evidence at the applicant's residence, the affiant asserts as follows:
14. f. Based on my experience as an investigator involved in firearm investigations, I further believe that it is possible that Nicola COLUCCIO could also transfer the firearm from whatever vehicle he is operating to his residence of 86 Novaview Crescent, Woodbridge. Based on my experience, it is not uncommon for persons carrying firearms for their protection to transfer the weapon from their vehicle to this [sic] residence so that the firearm is always near their person, in case of an unexpected attack.
18....If Nicola COLUCCIO is arrested in his vehicle while in possession of a firearm, I believe that ammunition is likely to be found in his residence, as well as paraphernalia, documents indicating ownership and/or possession of firearms." (Para 19)
"In terms of Det. Mancuso's efforts to confirm the CHS's assertion that the applicant was a member of the Calabrian Mafia, Det. Mancuso agreed that he did not seek or obtain specific details from the Italian authorities regarding the nature and facts of the offences he was sought for in Italy." (Para 26)
Review of a Search Warrant and CI Information
"Search warrants are generally issued on the basis of "reasonable and probable grounds". This standard requires "credibly based probability", see: R. v. Morris (1998), 134 C.C.C. (3d) 539 (NSCA) and R. v. Debot, [1989] 2 S.C.R. 1140 at para. 47. The ITO must disclose reasonable grounds to believe that an offence has been committed, and that evidence in relation to that offence will be found at the place to be searched, see: R. v. Sadikov, 2014 ONCA 72 at para. 81. As Paciocco J. (as he then was) explains in R. v. Floyd, 2012 ONCJ 417, at para. 9:
In sum, the "reasonable and probable grounds" or "credibly-based probability" concept requires that the grounds furnished must demonstrate that there is a probability as opposed to a suspicion that the relevant facts could be true, assuming the information to be true (the "sufficiency inquiry"), and that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant fact exists (the "credibility inquiry")." (Para 24)
"Where the core of the ITO rests on information conveyed by an informant, the issuing court must assess the credibility and reliability of the information provided by the informant. This involves asking three questions: is the information compelling? is the informer credible? and, was the information provided corroborated?; see R. v. Debot, [1989] 2 S.C.R. 1140, R. v. Hosie, [1996] O.J. No. 2174 (Ont. C.A.) and R. v. Shivrattan, 2017 ONCA 23. In Shrivattan, Doherty J.A. provided the following guidance on this issue:
The first question addresses the quality of the CI's information. For example, did he purport to have first-hand knowledge of events or was he reporting what he had been told by others? The second question examines the CI's credibility. For example, does he have a long record which includes crimes of dishonesty, or does he have a motive to falsely implicate the target of the search? The third question looks to the existence and quality of information independent of the CI that offers some assurance that the CI provided accurate information. The answers to each of the questions are considered as a whole in determining whether the warrant was properly issued in the totality of the circumstances. For example, particularly strong corroboration may overcome apparent weaknesses in the CI's credibility: see Crevier, at paras. 107-108." (Para 32)
"In terms of the review process, my role is not to decide whether I would have accepted the informer's tips in combination with the balance of the investigation set out in the ITO as a sufficient basis for issuing the authorizations in question. Rather, the question is whether an issuing justice could have done so based on this record, as amplified with the permitted cross-examination." (Para 33)
Application to the Facts - Debot Factors Analysed
"In terms of other corroboration, the defence does not challenge that aspects of the informant's information, such as his physical description of the applicant, the type of vehicle the applicant drove, and the applicant's city of residence were corroborated by police. However, the defence asserts that overall, the degree of corroboration is minimal at best." (Para 42)
"I agree that the degree of corroboration of the informant's information is not significant. While there is some degree of corroboration, the bulk of it is on matters that would be readily discoverable, if not public knowledge. Viewed as a whole, I would place the degree of corroboration in this case towards the lower end of the spectrum." (Para 41)
"In terms of the compelling nature of the information provided, I am mindful of the fact that I have viewed the full unredacted ITO and Appendix D. Without revealing information that might identify the informant, I am satisfied that the nature of the information provided is compelling. The information provided is detailed, has an appropriate degree of frequency and recency, and is, for the most part, neither conclusory nor based on rumour or gossip." (Para 44)
"One limitation on the compelling nature of the tip relates to whether the applicant is a member of the Calabrian mafia. The basis for this information is not provided and it appears to be simply a bald assertion or perhaps rumour or gossip. While not central to the tip, the informant's indication of rising tensions between the Calabrian and Sicilian mafia is similarly a bald assertion without any specific supporting detail. On this issue I note that paragraph ii on page 5 of Appendix D purports to set out what involvement, if any, the confidential source has in the criminal sub-culture. This paragraph is incomplete and ends mid-sentence. As drafted, this paragraph is also essentially a bald assertion without supporting detail." (Para 46)
"Notwithstanding these limitations, when I consider the relevant authorities which discuss whether a tip is "compelling", I am prepared to find that the tip in relation to the black semi-automatic handgun was clearly compelling; see R. v. Greaves-Bissesarisngh, 2014 ONSC 4900 at para. 40-42, R. v. Rocha, 2012 ONCA 707 at para. 28 and R. v. Hosie (1996), 107 C.C.C. (3d) 385 at 392 (Ont.C.A.)." (Para 47)
"On the whole, I am satisfied that the ITO reveals a basis upon which the issuing justice could have been satisfied of the informant's credibility." (Para 51)
Application to the Facts - Grounds in Relation to the Home
"The affiant's primary basis for seeking the warrant to search the applicant's home appears to be the belief that the applicant will carry the firearm with him into the home. While the warrant lists both the semi-automatic handgun and a revolver as items sought, the ITO does not appear to be focussed on the revolver. Indeed, I take the affiant's repeated use of the term "the firearm" to relate to the black semi-automatic handgun. Moreover, in paragraph 18, where the affiant suggests that if the applicant is arrested while driving and found to be in possession of a gun, the affiant further asserts that ammunition, paraphernalia and documentation relating to the gun, will nonetheless be found in the residence. Importantly, the affiant does not suggest that if one gun is found with the applicant in a vehicle, the other gun will probably be at the home." (Para 55)
"The defence then notes that the affiant attempts to draw a connection between this general belief and the facts of this case by stating at paragraph 14(g):
The confidential source stated that Nick COLUCCIO is part of the Calabrese Mafia and there appear to be rising tensions between the Calabrese Mafia and Sicilian Mafia in the Toronto area. I therefore believe that Nicola COLUCCIO is in possession of a firearm for his own personal protection." (Para 58)
"The defence argues that this portion of the ITO provides no real support for the belief that the applicant may have brought the firearm from his vehicle into his home. I agree." (Para 59)
"While the affiant may have had a sufficient basis for believing that the applicant was in some fashion connected with the Calabrian mafia, the further assertion about the rising tensions between the Calabrian mafia and Sicilian mafia being somehow related to the applicant's need to carry a firearm for self-defence is based on unsupported speculation. The CHS's bald assertion regarding rising tensions between the Calabrian and Sicilian mafia in Toronto as a result of some unspecified violence over the past few years in Montreal is not supported by any corroborative information. Moreover, there is nothing in the CHS information suggesting or even hinting at the fact that the applicant was in possession of the firearm for the purposes of defending himself from the Sicilian mafia. To the contrary, the CHS indicates that the applicant is "crazy and likes to show off his gun"." (Para 60)
"When this portion of the ITO is placed in its proper context, there is little to no case specific support for the affiant's assertion that people who possess firearms may take them from their car into their home so that the weapon is at the ready in case of an attack. As such, the officer's assertion that some people do that is simply an unsubstantiated assertion about how some people act in certain circumstances. On the facts of this case, the officer's assertion in this regard adds little to the reasonable grounds analysis; see R. v. Morelli, 2010 SCC 8 at paras. 70-73 and R. v. Aboukhamis, 2015 ONSC 2860 at paras. 35-38." (Para 61)
Breach of Obligation to Provide Full and Frank Disclosure to the Issuing Justice
At one point during surveillance, police observed the Applicant to leave a satchel, previously believed to have a gun in it, in his car when he went into his residence. (Paras 63-65)
"The fact that the satchel was left in the car is not mentioned in the ITO, despite being noted in bold in the surveillance report. Det. Mancuso agreed that he would have read the surveillance report in preparing the ITO, and he would have done so knowing that he was required to fairly put the information before the issuing justice." (Paras 66)
"I agree with the defence that this is a significant material omission. The narrative of the ITO conveys the clear impression that the police believed the satchel contained a firearm. Viewed in context of all the information, including the CHS information, this belief was a reasonable one. However, the fact that the satchel remained in the car and was not taken into the house was a material fact that clearly detracted from the grounds supporting a belief that the firearm would be taken inside the house. This is a fact that was known to the affiant and should have been made known to the issuing justice. Had the fact been provided to the issuing justice, it would have provided a basis upon which the issuing justice could assess the affiant's general opinion that it is "not uncommon" for people to transfer a firearm from a vehicle into a house in order to have it at the ready in case of an attack." (Para 67)
Conclusion
"The facts in this case sit somewhere between Rocha and Herta. In my view, the facts here are worse than in Rocha, though not as bad as in Herta. In Rocha, there was a bald assertion by the CHS linking drugs with the home searched. Here, there is no such link. Instead, there is a generalized assertion by the affiant that people move guns around and will take a gun inside their home from their car in order to have it ready in case of an attack. This generalized assertion is undermined by a significant material omission relating to the presence of the satchel inside the car. Moreover, the assertion is not supported by the case specific information provided by the CHS." (Para 76)
"On the evidentiary basis revealed in the ITO, I conclude that no justice could issue a warrant to search the applicant's home for the black semi-automatic handgun. I further conclude that the officer's assertions relating to the presence of ammunition, a cleaning kit, and documentation relating to the firearm in the home amounts to no more than bald assertions based on generic beliefs. I would not sever and save these portions of the warrant." (Para 78)
"I am not prepared to find that because grounds exist demonstrating that an accused drives around in a car with a handgun, a warrant could also issue for a search of the accused's home. This comes perilously close to the "roving grounds to believe" scenario discussed in Herta." (Para 79)
Charter s.24(2) Analysis
Seriousness of the Charter-Infringing State Conduct
"That said, the ITO did not come close to providing a basis for searching the home. The home was searched in the absence of reasonable and probable grounds supporting a belief that the firearm was in the house. The affiant relied on bald conclusory statements about rising tensions between mafia factions as somehow creating a need on the part of the applicant to arm himself for protection. This was used to lend credence to the affiant's assertion that people who carry guns would bring them into their home to be ready in case of an attack. There was no evidence supporting this position." (Para 91)
"Moreover, the ITO contained a significant material omission that undermined the stated basis for searching the home." (Para 92)
"When I assess this line of inquiry cumulatively, I find that while the affiant did not set out to defeat Charter standards, he simply did not comply with long settled Charter standards. A significant material omission was made, the search of the home was premised on nothing more than generalized supposition about how certain people act, and there were some attempts to shade or colour the facts placed in the ITO." (Para 96)
Impact on the Accused's Charter Protected Interests
"While I accept that the search of the home was not accompanied by other aggravating features, it remains a serious intrusion on Mr. Coluccio's privacy interests." (Para 98)
Balancing
"In my view, the first line of inquiry tips towards exclusion of the evidence. The second line of inquiry squarely supports exclusion. The third line of inquiry supports admission. While there is no hard and fast rule that where the first two lines of inquiry support the exclusion the third line of inquiry will rarely if ever swing the result towards inclusion, it is nonetheless often the outcome; see R. v. McGuffie, 2016 ONCA 365, R. v. Paterson at para. 56 and R. v. Omar, at paras. 109-121. Ultimately, the court must consider "all the circumstances" in deciding whether the evidence ought to be excluded." (Para 105)
"The evidence is excluded." (Para 107)
R v S (ONSC)
[Aug 6/19] – Similar Fact Evidence and Issue Estoppel – 2019 ONSC 4650 [A.J. Goodman J.]
AUTHOR’S NOTE: In this case the Crown tried to lead similar fact evidence of an incident for which the accused had been acquitted previously. Issue estoppel prevents the Crown from doing so.
Pertinent Facts
"The Crown seeks a ruling that the facts or allegations of sexual misconduct by S. towards another complainant, "LF", be admissible as similar act evidence on the count alleged before this Court." (Para 3)
"The similar act complainant, L.K., is S.'s grand-niece. She testified at trial that in July, 2017, when she was 10 years old, she was visiting him at his home in Port Elgin. She recalled that at one point, she was sitting beside him on the couch, using his iPad to play a game. She wanted to access the internet on the device, so she asked S. to input the password. According to L.K., he put his arm around and behind her as he leaned in beside her (her words were that he "scooched closer"). He moved his hand on her leg, and, as she watched a YouTube video, he moved his hand gradually up her leg until he was touching her vagina. L.K. became nervous and unsure of what to do. She escaped the situation by excusing herself to the bathroom. Subsequently, S. told her "I'm sorry I made you pee, did it feel good"?" (Para 5)
"The current complainant, C.F., is expected to testify that S. was a friend of her mother. He allowed C.F. and her mother to stay with him and his wife for a period of time in 1991, when C.F. was nine. C.F. will testify that on Halloween night, she was being babysat by the respondent while her mother was out at a Halloween party. He allowed her to play games on his computer. She recalls that at one point that evening, she was playing a computer game while the Respondent was sitting next to her. As she was playing, he kept putting his hand on her leg. She thought nothing of it at the time." (Paras 6)
"S. then asked if C.F. would like to read a book in bed. He sat down next to her on the bed as she was reading. He put his hand on her leg and began gradually moving it up, closer to her vagina, until he was touching it. She recalls that he penetrated her vagina with his fingers. She recalls him saying that his hand was cold." (Para 7)
Issue Estoppel
"My ultimate conclusion rests upon the doctrine of issue estoppel. I agree with the respondent's submission that the similar act application is inadmissible in this case by virtue of S.'s acquittal of the same facts at trial in the Ontario Court of Justice in relation to the complaints levelled against him by L.K." (Para 22)
"At the end of his ruling, Sherwood J. made the following comment:
For the reasons I have given, I am not satisfied that the evidence of the accused is entirely truthful or accurate as to what happened on July 9, 2017, but I do have to accept that it raises a reasonable doubt. I am certainly satisfied on the civil standard of balance of probabilities that what the child complainant testified to is likely what happened that day and that the offences alleged were probably committed by the accused but I am unable to make that determination to the requisite standard required in a criminal proceeding." (Para 23)
"At the end of the trial the judge acquitted S. on the counts related to L.K." (Para 24)
"The Crown submits that if the respondent had never been tried on L.K.'s allegations, it would be necessary to establish the truth of those allegations on a balance of probabilities before admitting them as similar fact evidence in this case. It is suggested that particular finding has already been made by Sherwood J." (Para 25)
"In Arp, the Supreme Court held that acquittals are generally a bar to use of those facts as similar fact evidence in a subsequent proceeding. At paras. 77 and 78, (citing its prior decision in Grdic v. The Queen, 1985 CanLII 34 (SCC), [1985] 1 SCR 810), the court reinforced the idea that an accused should not be forced to repeatedly defend himself against the same allegations." (Para 28)
"In his reasons for judgment in Grdic, Lamer J. states clearly the fundamental point about acquittals at paras. 35 and 36.
There are not different kinds of acquittals and, on that point, I share the view that "as a matter of fundamental policy in the administration of the criminal law it must be accepted by the Crown in a subsequent criminal proceeding that an acquittal is the equivalent to a finding of innocence" (see Friedland, Double Jeopardy, (1969), at p. 129; also Chitty i, 648; R. v. Plummer [1902] 2 K.B. 339 at p. 349. To reach behind the acquittal, to qualify it, is in effect to introduce the verdict of "not proven", which is not, has never been, and should not be part of our law."(Para 30)
"Most significantly, the Supreme Court of Canada has laid to rest the conundrum of prior acquittals and issue estoppel in R. v. Mahalingan, 2008 SCC 63 (CanLII), a decision to which neither counsel referred to in their respective submissions." (Para 31)
"In Mahalingan, the Supreme Court of Canada provided guidance as to when the doctrine applies in criminal law. As the court stated at para. 18, "if an issue supporting an acquittal is resolved in favour of the accused on one offence, on whatever basis, evidence to contradict the finding on that issue cannot subsequently be re-led on different charges."" (Para 32)
"There is no basis for any exception to the rationale provided by the majority in Mahalingan. Here, there was a full acquittal on the charges related to L.K. I must also consider the accused's ability to respond to the evidence. If I accept the Crown's position, the re-litigation of the L.K. charges is unavoidable and may detract the jury from their ultimate task. The respondent would be required to again give evidence or defend the allegations of sexual assault from L.K. and place him in an untenable position when he had been acquitted." (Para 34)
