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R. v. Arp, [1998] 3 S.C.R. 339

 

Brian Arp                                                                                            Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

and

 

The Attorney General of Canada,

the Attorney General for Ontario

and the Attorney General for Alberta                                              Interveners

 

Indexed as:  R. v. Arp

 

File No.:  26100.

 

1998:  June 18; 1998:  November 26.

 

Present:  Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

 

on appeal from the court of appeal for british columbia

 


Constitutional law ‑‑ Charter of Rights -- Fundamental Justice-- Presumption of innocence -- Standard of proof to be applied to conclusions drawn from similar fact evidence ‑‑ Whether application of civil standard would offend Charter  principles of fundamental justice and right to be presumed innocent  ‑‑ Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d).

 

Criminal law ‑‑ Evidence ‑‑ Similar fact evidence ‑‑ Standard of proof to be applied to conclusions drawn from similar fact evidence ‑‑ Whether application of civil standard would offend Charter  principles of fundamental justice and right to be presumed innocent  ‑‑ Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d).

 

Constitutional Law -- Charter of Rights   ‑‑ Unreasonable search and seizure ‑‑ Body samples given with consent during investigation of earlier crime ‑‑ Samples seized under warrant and analysed with respect to investigation of second crime ‑‑ Whether admission of bodily samples offended right to be free from unreasonable search and seizure guaranteed in ss. 7  and 8  of the Charter  ‑‑ Canadian Charter of Rights and Freedoms, ss. 7 , 8 .

 

Two women were murdered some two-and-a-half years apart in the same city and in similar circumstances.

 

The accused was arrested after the first murder.  He gave the investigating officers scalp and pubic hair samples when asked if he was interested in helping them eliminate him as a suspect.  The samples were to be used to determine whether any of his hair was found where the victim was found and he was released when none matched the samples taken from the victim’s coat.  (Use for DNA analysis was not contemplated at the time.)  The officer advised him that any evidence gathered as a result of the hair sample would be used in court.

 


During the investigation of the second murder, the accused refused to provide samples for DNA testing.  Cigarette butts belonging to him, however, were taken after his police interview, analysed as to DNA composition and found to match the semen fraction taken from the second victim.  The scalp and pubic hairs taken from the accused during the first murder investigation were analysed as to DNA composition and found to match the analysis of the cigarette butts and the semen. The accused was arrested and charged with the first degree murder of the second victim and then re‑arrested and charged with the first degree murder of the first victim as well.

 

Defence counsel twice unsuccessfully applied to sever the two murder counts in the indictment, before the trial and at the end of a lengthy voir dire.  Counsel also objected to the admissibility of the samples taken and used by the police for DNA analysis and the DNA evidence itself.  The evidence was ruled admissible.  A jury convicted the accused on both counts.  His appeal to the Court of Appeal was dismissed.

 

Two principal issues arose here.  First, whether a jury, to draw conclusions from similar fact evidence, was to be satisfied on a civil or criminal standard of proof that the same person committed the acts in question, and if the civil standard applied, whether the principles of fundamental justice (s. 7 ) and the right to be presumed innocent (s. 11 (d)) in the Canadian Charter of Rights and Freedoms  would be offended.   Second, did the admission into evidence of hair samples obtained by consent for one police investigation and used in connection with the separate later investigation offend the accused’s right to be free from unreasonable search and seizure guaranteed in ss. 7  and 8  of the Charter ?

 


Held:  The appeal should be dismissed.

 

In considering whether similar fact evidence should be admitted the basic question to be determined is whether the probative value outweighs the prejudicial effect. Therefore, in cases where identity is at issue and the accused is shown to have committed acts with a striking similarity to the alleged crime the jury is not asked to infer from the accused’s habits or disposition that he or she is the type of person who would commit the crime.  Instead the jury is asked to infer from the distinctiveness or uniqueness that exists between the manner in which the crime under consideration was committed and the similar act that the accused is the very person who committed the crime.  This inference is made possible only if the high degree of similarity between the acts renders the likelihood of coincidence objectively improbable.  Once this preliminary determination is made, the evidence related to similar fact (or count, in a multi-count indictment) may be admitted to prove the commission of another act (or count).

 


Several suggestions were put forward to assist judges in their approach to similar fact evidence.  Where similar fact evidence is adduced to prove identity, a high degree of similarity between the acts is required since in order to be admissible the similar fact evidence must have the requisite probative value necessary to outweigh its prejudicial effect.  The similarity between the acts may consist of a unique trademark or signature on a series of significant similarities.  In assessing the similarity of the acts, the trial judge should only consider the manner in which the acts were committed and not the evidence as to the accused’s involvement in each act.  There may well be exceptions but as a general rule, if upon assessing the similarity of the acts in this manner, the trial judge is satisfied that there is such a degree of similarity between the acts that they were likely committed by the same person, the similar fact evidence will ordinarily have sufficient probative force to outweigh its prejudicial effect and may be admitted.  The jury will then be able to consider all the evidence related to the alleged similar acts in determining the accused’s guilt for any one act.  The test for admissibility of similar fact evidence adduced to prove identity is the same whether the alleged similar acts are definitively attributed to the accused, or are the subject of a multi‑count indictment against the accused.

 

Where the similar acts are alleged as part of a multi‑count indictment, the consideration of the admissibility of similar fact evidence must be taken into account in deciding whether the counts should be severed.  A motion to sever must be brought by the accused, who bears the burden of establishing on a balance of probabilities that the interests of justice require an order for severance.  The burden of demonstrating that similar fact evidence should be admitted must be borne by the Crown.

 

Where the similar fact evidence adduced to prove identity suggests that the same person committed the similar acts, then logically this finding makes the evidence linking the accused to each similar act relevant to the issue of identity for the offence being tried. Similarly, in a multi‑count indictment, the link between the accused and any one count will be relevant to the issue of identity on the other counts which disclose a striking similarity in the manner in which those offences were committed.

 


A link between the accused and the alleged similar acts is also a precondition to admissibility.  The evidence linking the accused to the similar acts does not have to link the acts to the accused as well.  Once the trial judge has concluded that the similar acts were likely committed by one person and there is evidence linking the accused to the acts it is not necessary to conclude that the acts were likely committed by the accused.  This question must be determined by the trier of fact on the basis of all the evidence relating to the acts.  Evidence of mere opportunity showing no more than the possibility that the similar act is that of the accused will not suffice to show the accused’s participation in the alleged similar act.

 

The proper standard to apply to the primary inference drawn from the similar fact evidence is proof on a balance of probabilities.  Since the probative value of similar fact evidence, as circumstantial evidence, lies in the unlikelihood of coincidence, it simply does not make sense to require one of the allegations to be proved beyond a reasonable doubt as a prerequisite to the trier of fact’s consideration of it.  Though the similar fact evidence, standing alone, may fall short of proof beyond a reasonable doubt, it can be relied upon to assist in proving another allegation beyond a reasonable doubt.  (The general rule that preliminary findings of fact may be determined on a balance of probabilities is departed from in those certainly rare occasions when admission of the evidence may itself have a conclusive effect with respect to guilt.)   The correct approach to a consideration of similar fact evidence by a jury is therefore the “cumulative” or “pooling” approach.  Thus, as a general rule where similar fact evidence is adduced to prove identity, the jury should be instructed that once they have concluded that there is sufficient likelihood that the same person committed the alleged similar acts, they may consider all the evidence relating to the similar acts in considering whether the accused is guilty of the act in question.

 

The following should be included in a proper charge to the jury where similar fact evidence is admitted to prove identity in a multi‑count indictment situation:

 

(1) The trial judge should instruct the jury that they may find from the evidence, though they are not required to do so, that the manner of the commission of the offences is so similar that it is likely they were committed by the same person.

 


(2) The judge should then review the similarities between the offences.

  

(3) The jury should then be instructed that if they conclude it is likely the same person committed more than one of the offences, then the evidence on each of those counts may assist them in deciding whether the accused committed the other similar count or counts.

 

(4) The trial judge must instruct the jury that if it accepts the evidence of the similar acts, it is relevant for the limited purpose for which it was admitted.

 

(5) The jury must be warned that they are not to use the evidence on one count to infer that the accused is a person whose character or disposition is such that he or she is likely to have committed the offence or offences charged in the other count or counts. 

 

(6) If they do not conclude that it is likely the same person committed the similar offences, they must reach their verdict by considering the evidence related to each count separately, and put out of their minds the evidence on any other count or counts.

 

(7) Finally, the trial judge must make it clear that the accused must not be convicted on any count unless the jury are satisfied beyond a reasonable doubt that he or she is guilty of that offence.

 


The trial judge’s charge to the jury that, if they concluded both counts were likely committed by the same person, they could use the evidence on each count to assist in deciding the appellant’s guilt on both counts does not offend s. 7  or s. 11 (d) of the Charter .  The additional charge instructing the jury to decide whether the appellant was guilty of the second murder and to decide whether both counts were committed by one person before using the evidence on both counts in respect of either count could not have prejudiced the accused.

 

If consent to the provision of bodily samples is to be valid it must be an informed consent. Yet if neither the police nor the consenting person limit the use which may be made of the evidence then, as a general rule, no limitation or restriction should be placed on the use of that evidence.  The obligation imposed on the police in obtaining a valid consent extends only to the disclosure of those anticipated purposes known to the police at the time the consent was given.  In the absence of any limitation placed by the police or the consenting party on the use to be made of the hair sample, there is nothing inherently unfair or illegal about the police retaining evidence obtained in connection with one investigation and using it in connection with a later investigation which was not anticipated by the police at the time the consent was given. Once the accused’s hair samples were taken by the police with his unconditional and reasonably informed consent, he ceased to have any expectation of privacy in them.  It was not necessary to consider whether the accused may have had a subsisting privacy interest in the samples or in the information that could be obtained from them after he gave his unconditional consent to the authorities to take the samples.

 

Cases Cited

 


Disagreed with:  Director of Public Prosecutions v. Boardman, [1975] A.C. 421; considered:  R. v. Borden, [1994] 3 S.C.R. 145; R. v. B. (C.R.), [1990] 1 S.C.R. 717; R. v. P., [1991] 3 All E.R. 337; R. v. Carter, [1982] 1 S.C.R. 938; referred to:  R. v. Simpson (1977), 35 C.C.C. (2d) 337; R. v. Lawson (1994), 45 B.C.A.C. 14; R. v. Doan (1996), 81 B.C.A.C. 192; R. v. Morin, [1988] 2 S.C.R. 345; Koufis v. The King, [1941] S.C.R. 481; R. v. Morris, [1983] 2 S.C.R. 190; R. v. D. (L.E.), [1989] 2 S.C.R. 111; Hoch v. The Queen (1988), 165 C.L.R. 292; R. v. Scopelliti (1981), 63 C.C.C. (2d) 481; R. v. C. (M.H.), [1991] 1 S.C.R. 763; R. v. Egger, [1993] 2 S.C.R. 451; R. v. Charemski, [1998] 1 S.C.R. 679; R. v. Barnes, [1995] 2 Cr. App. R. 491; R. v. Scarrott (1977), 65 Cr. App. R. 125; R. v. Khan (1996), 49 C.R. (4th) 160; R. v. Sweitzer, [1982] 1 S.C.R. 949; Harris v. Director of Public Prosecutions, [1952] A.C. 694; R. v. Ross, [1980] 5 W.W.R. 261; R. v. J.T.S., [1997] A.J. No. 125; R. v. Eng (1995), 56 B.C.A.C. 18; R. v. Studer (1996), 181 A.R. 399; R. v. N. (R.S.) (1995), 31 Alta. L.R. (3d) 424; R. v. White, [1998] 2 S.C.R. 72; R. v. Bouvier (1984), 11 C.C.C. (3d) 257, aff’d [1985] 2 S.C.R. 485; R. v. Evans, [1993] 3 S.C.R. 653; Ward v. The Queen, [1979] 2 S.C.R. 30; R. v. Cullen (1989), 52 C.C.C. (3d) 459; R. v. Verney (1993), 87 C.C.C. (3d) 363; R. v. M. (R.A.) (1994), 94 C.C.C. (3d) 459; R. v. Merdsoy (1994), 91 C.C.C. (3d) 517; Grdic v. The Queen, [1985] 1 S.C.R. 810; R. v. Ollis, [1900] 2 Q.B. 758; G. (an infant) v. Coltart, [1967] 1 All E.R. 271; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Mellenthin, [1992] 3 S.C.R. 615.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, ss. 7 , 8 , 11 (d), 24(2) .

 

Criminal Code, R.S.C., 1985, c. C‑46, ss. 487.04  [ad. S.C. 1995, c. 27, s. 1], 591(3)(a) [rep. & sub. R.S.C., 1985, c. 27 (1st Supp.), s. 119].

 

Authors Cited

 

Canada.  Law Reform Commission.  Working Paper No. 34.  Investigative Tests.  Ottawa:  The Commission, 1984.

 

Eggleston, Richard.  Evidence, Proof and Probability, 2nd ed.  London:  Weidenfeld and Nicolson, 1983.

 


Ferguson, Gerry.  CRIMJI:  Canadian Criminal Jury Instructions, vol. 1, 3rd ed.   Vancouver:  Continuing Legal Education Society of British Columbia, 1997 (loose-leaf updated November 1997, release PB97874).

 

Mahoney, R.  “Similar Fact Evidence and the Standard of Proof”, [1993] Crim. L. Rev. 185.

 

McWilliams, Peter K.  Canadian Criminal Evidence, 3rd ed.   Aurora, Ont.:  Canada Law Book, 1988 (loose-leaf updated November 1997, release 19).

 

Percival, Richard.  Case and Comment on R. v. Brown, Wilson, McMillan and            McClean, [1997] Crim. L. Rev. 502.

 

Smith, J. C.  Case and Comment on R. v. Hurren, [1962] Crim. L. Rev. 770.

 

APPEAL from a judgment of the British Columbia Court of Appeal (1997), 92 B.C.A.C. 286, 150 W.A.C. 286, 116 C.C.C. (3d) 168, [1997] B.C.J. No. 1193 (QL), dismissing an appeal from conviction by Parrett J. sitting with jury, [1995] B.C.J. No. 882 (QL).  Appeal dismissed.

 

Gil David McKinnon, Q.C., and Thomas Arbogast, for the appellant.

 

Oleh S. Kuzma, for the respondent.

 

S. Ronald Fainstein, Q.C., and Chantal Proulx, for the intervener the Attorney General of Canada.

 

Jamie C. Klukach, for the intervener the Attorney General for Ontario.

 

Written submission only by Arnold Schlayer, for the intervener the Attorney General for Alberta.

 

 


 

 

The judgment of the Court was delivered by

 

//Cory J.//

 

1                                   Cory J. --  There are two principal issues raised in this appeal.  First, should a jury be instructed that they may draw conclusions from similar fact evidence on a balance of probabilities?  The appellant contends that such an instruction offends the principles of fundamental justice guaranteed by s. 7  of the Canadian Charter of Rights and Freedoms  and the right to be presumed innocent under s. 11 (d) of the Charter .

 

2                                   Second, does the admission into evidence of hair samples obtained by consent for one police investigation and used in connection with a separate investigation two-and-a-half years later offend the appellant’s right to be free from unreasonable search and seizure guaranteed in ss. 7  and 8  of the Charter ?

 

I.  Factual Background

 

3                                   Marnie Blanchard was last seen at approximately 2:00 a.m. on November 22, 1989, standing alone outside a bar in Prince George, British Columbia.  A taxi driver saw a lone male driver of what he believed was a small grey Toyota or Nissan pickup truck pull up beside Marnie Blanchard.  He saw that the driver of the truck had black shoulder‑length hair and some hair on the side of his face.  He observed Ms. Blanchard hesitate and then get into the truck, which drove away.

 


4                                   Almost three weeks later, a cross‑country skier found a human jawbone in a clearing approximately 10 kilometres from downtown Prince George.  Police later found a skull and various human bones in the clearing.  The remains had been disturbed by animals, and as a result medical examiners were unable to establish a cause of death.  A pathologist testified that there had been no pre‑death injury to the bones.  A comparison of dental records established the identity of the body as that of Marnie Blanchard.

 

5                                   Police also discovered Ms. Blanchard’s coat, sweater and a piece of nylon pantyhose in a pile.  The remainder of her clothes, as well as portions of clothing and personal possessions were scattered around the clearing.  There was evidence that a sharp‑edged implement had been used to cut some of the clothing (the skirt in the area of the zipper and the camisole) and that the victim’s sweater had been extensively damaged by cutting or tearing.  A hair and fibre analyst also testified that animal chewing could have caused some of the damage to the clothes.

 

6                                   The Crown’s forensic pathologist expressed the opinion that the death was the result of homicidal violence for three reasons: the clothing had been cut and torn, then placed where it was found; the area was remote; the skeletonization of the bones and scattering by animal activity did not fit with a natural death.

 


7                                   Thorone Fontaine, an acquaintance of the appellant, testified that he went out drinking with the appellant one evening in November 1989, though he was not sure of the date.  When the appellant dropped off Mr. Fontaine at the end of the evening, he noticed that the appellant drove back downtown, the opposite direction to where he lived.  The next day the appellant went to Mr. Fontaine’s home and told him that he had arrived home late because he had picked up a young woman and driven her to Vanderhoof.  The appellant told Mr. Fontaine that when he dropped her off, the woman had left some jewellery on his dashboard.  Mr. Fontaine observed that the sleeve around the gear shift in the appellant’s truck was damaged and that the arm controlling the signal switch and windshield wipers was broken.

 

8                                   Evidence was given by Sharon Olson, another acquaintance of the appellant, that on or about November 22, 1989, the appellant told her that he had dropped off a friend with whom he had been drinking, and then picked up an attractive blonde woman and drove her home.  He gave Ms. Olson the impression that he had had sex with the woman and that she had given him jewellery in exchange.  He told Ms. Olson that his common-law wife found the jewellery in his pocket.  Arlene Spencer, another acquaintance, testified that on or about November 23, 1989, the appellant also told her that the night before he had picked up a girl and had driven her to Vanderhoof.  She did not have the money she had promised him for gas, so she gave him some jewellery instead.  The appellant had said his wife was upset when she found the jewellery in his pocket.

 

9                                   On April 18, 1990, police searched a grey Nissan pickup truck registered in the name of the appellant’s common-law wife.  In the driver’s door pocket they found a double‑edged knife with a four‑inch blade.  Under the passenger seat they found a small silver ring that was later identified as Ms. Blanchard’s by several of her friends.  In searching the pickup, the officers also recovered two small purple fibres from the carpet underneath the passenger seat area, and they cut out a section of the carpeting.  A hair and fibre expert testified that he examined those fibres and others he extracted from the carpet.  He compared them to Ms. Blanchard’s sweater found in the clearing with her remains.  He concluded that the fibres taken from the vehicle were consistent with the fibres used in the manufacture of the purple sweater.


 

10                               On July 26, 1990, the appellant was arrested for the second degree murder of Ms. Blanchard.  The appellant was advised of his Charter  rights and given an opportunity to call a lawyer.  After his call to a lawyer, the appellant told police that he had been advised not to say anything.  Nevertheless, the officers questioned the appellant for approximately 25 minutes, during which the appellant insisted that he did not pick up a girl in November.  One of the officers then asked the appellant if he would be interested in helping them eliminate him as a suspect.  The appellant replied, “That would be great with me” and agreed to give scalp and pubic hair samples.  He was informed that the samples would be used to determine whether any of his hair was found where Ms. Blanchard’s body was discovered.  He acknowledged that he did not have to give this sample.  The officer further informed the appellant that if he gathered any evidence as a result of the hair sample, it would be used in court.

 

11                               It is common ground that the investigating officers did not contemplate using the hair samples for DNA analysis; the use of the technology was not common in July 1990.  The hair samples were forwarded to the RCMP forensic laboratory in Vancouver for physical comparisons with hairs found at the scene where Ms. Blanchard’s body was discovered.  The appellant’s hair did not match with 16 hair samples taken from Ms. Blanchard’s coat and other items.

 

12                               Following a preliminary inquiry into the charge for the murder of Marnie Blanchard, the provincial court judge declined to commit the appellant for trial.  He was discharged and released on December 17, 1990.

 


13                               On February 13, 1993, Theresa Umphrey arrived in Prince George and drank with friends at several pubs.  Between 2:20 and 3:40 a.m. on February 14 she was seen near a convenience store.  She was intoxicated.  She asked some men for a ride home and they drove her around, but when she was unable to identify where she lived, they returned her to the vicinity of the convenience store.  At approximately 2:30 p.m. on February 14, Ms. Umphrey’s nude, partially frozen body was found on a snowbank approximately 50 kilometres southwest of Prince George.

 

14                               The forensic pathologist who performed the autopsy on the body of Ms. Umphrey testified that death was caused by manual strangulation and then ligature strangulation.  The ligature marks were consistent with being caused by shoelaces such as those found at the scene.  There were numerous scrapes on her body consistent with having been dragged over a rough surface.  Her skull was severely crushed.  A portion of her hair close to the scalp wound had been cut short with a sharp instrument such as scissors or a knife.  The pathologist confirmed that Ms. Umphrey had sexual intercourse some time during the last 24 to 28 hours of her life, based on sperm found in her vaginal cavity.  There was no physical evidence of sexual assault.  Semen was also found on Ms. Umphrey’s sweatshirt.

 

15                               Most of Ms. Umphrey’s clothes were found at the scene scattered down the embankment near her body in a pattern consistent with having been thrown.  Her brassiere was found at the side of the road 1.4 kilometres north of her body.  An RCMP expert in fibre analysis and damage to fabrics testified that the brassiere was cut apart between the cups and knotted at the back where it is normally fastened.  One of the shoelaces was also cut.  The cuts had been made by a sharp‑edged instrument.  Other articles of Ms. Umphrey’s clothing did not disclose any evidence of damage.

 


16                               While out of custody and prior to being charged, the appellant was interviewed by the police on several occasions.  During the last interview, a police officer told the appellant that some human tissue not belonging to Ms. Umphrey had been found on her body and asked the appellant to provide samples for DNA testing.  The officer said they were in the process of comparing the appellant’s hair sample taken in 1990 to the human tissue sample taken from the body of Ms. Umphrey.  The appellant refused to give samples for DNA testing.

 

17                               During the interview, the appellant had been allowed to smoke several of his own cigarettes.  After the interview, an officer returned to the interview room and gathered the butts of the cigarettes that the appellant had been smoking and which he had placed in an ashtray.  A few days later, an officer executed a search warrant at the RCMP forensic laboratory in Vancouver and took possession of the appellant’s scalp and pubic hairs that had been taken from him on July 26, 1990.

 

18                               Barbara Fraser, a forensic biology specialist employed at the RCMP forensic laboratory found there was a five‑probe visual match between the pubic hairs obtained from the appellant on July 26, 1990, the cigarette butts retrieved from the interview room and the semen fraction located in the vagina of Ms. Umphrey and the semen fraction located on her sweater.  Ms. Fraser explained in her testimony that a five‑probe match occurs when there is a match between five different regions in two samples of DNA.  A five-probe match is an extremely rare event to occur between unrelated individuals.  Based on these results, Ms. Fraser expressed the opinion that this frequency of occurrence in the Canadian Caucasian population was less than one in 31 billion.

 


19                               Ms. Fraser also compared the DNA from the cigarette butts with DNA from the blood of the appellant’s natural mother and father over five probes.  The analysis showed that the rules of inheritance were followed, with one of the appellant’s DNA bands matching one of his father’s DNA bands and the other matching one of his mother’s DNA bands.  Ms. Fraser concluded that in her opinion it was 30 million times more likely that the DNA in the semen samples came from a biological child of the appellant’s parents than from an individual selected randomly from the Canadian population.

 

20                               On October 4, 1993, the appellant was arrested and charged with the first degree murder of Theresa Umphrey.  The appellant was also re‑arrested and charged with the first degree murder of Marnie Blanchard.

 

21                               Prior to trial, defence counsel twice applied to sever the two murder counts in the indictment.  These applications were refused.  Counsel also objected to the admissibility of the samples taken and used by the police for DNA analysis and the DNA evidence itself.  The evidence was ruled admissible.  A jury convicted the appellant of the two counts of first degree murder.  His appeal to the Court of Appeal was dismissed.

 

II.  Judgments Below

 

A.  Supreme Court of British Columbia, [1995] B.C.J. No. 882 (QL), (Parrett J.)

 

1.    The Rulings on Severance

 


22                               On October 13, 1994, the appellant applied under s. 591(3) (a) of the Criminal Code, R.S.C., 1985, c. C‑46 , to sever the two murder counts.  The trial judge noted that on such an application, the onus is on the accused to show that the interest of justice requires severance.  The defence pointed to the discharge of the appellant at the preliminary inquiry into the Blanchard murder in 1990, and submitted that the Crown was attempting to use the similar fact evidence of the Umphrey murder to establish primarily that Ms. Blanchard’s death was the result of homicide.  Defence counsel argued there was no precedent for this use of similar fact evidence.  The defence further submitted that there was no nexus in time between the two murders, that there are numerous differences between the two events, and that the similarities that do exist are not unique.

 

23                               The Crown opposed the application and asserted that even in the case of severance, it would seek to adduce the evidence of each offence in the other trial as similar fact evidence.  The Crown conceded that unless the evidence concerning the Umphrey murder was admissible to establish that the accused committed the Blanchard murder, there should be a severance of the two counts.  However, the Crown argued that there were many similarities between the two events indicative of pattern and design.

 

24                               The trial judge noted that medical examiners were unable to determine the cause of Ms. Blanchard’s death.  He noted that her clothing was found near her body and that some of it was torn and some of it appeared to have been cut with a sharp instrument such as a knife.  The trial judge found it was a fair inference that Ms. Blanchard’s death was not natural and that her clothing had been removed prior to her body’s being left in the snow.

 


25                               The trial judge reviewed the evidence related to the murder of Theresa Umphrey.  The trial judge noted that the Crown submitted the crimes were similar in that the victims were young single females who were vulnerable and who were without funds or transportation in the early morning hours; there was evidence that each was picked up by the accused in a grey pickup truck; the Umphrey case clearly involved sexual intercourse, while in the Blanchard murder a sexual purpose could be inferred; the victims were left in isolated but accessible areas outside Prince George; the victims’ clothes were found discarded nearby; there was evidence that in both cases a sharp‑edged instrument such as a knife was used.

 

26                               The trial judge further noted that in the Umphrey case, the DNA analysis linked the accused to the victim.  In the Blanchard case, circumstantial evidence also linked the accused to the victim, e.g., the testimony of a witness who saw Ms. Blanchard get into a pickup truck similar to one used by the appellant; the ring found in the appellant’s truck identified as belonging to Ms. Blanchard; the purple fibres in the truck found to be consistent with Ms. Blanchard’s sweater.  The Crown submitted that this evidence demonstrates a system and method by which the accused seeks out and identifies his victims, as well as the way he deals with them and disposes of the bodies.

 

27                               The trial judge reviewed the governing authorities on similar fact evidence, the similarities between the two offences and the potential prejudice to the appellant.  He found that the appellant had not met his burden under s. 591 of the Code.  He found “significant and striking similarities” between the two deaths.  The trial judge concluded that if the evidence linking the appellant to both victims on the nights they disappeared were admitted, then the evidence related to the Umphrey killing “is both relevant and highly probative of material issues in the Blanchard case”.  The trial judge denied the appellant’s motion for severance, but invited the appellant to renew the application for severance once the rulings on admissibility were completed.

 

28                               At the end of a lengthy voir dire, the defence renewed its application for severance.  The trial judge found that although some evidence had been excluded, the Crown’s case remained essentially unchanged.  The application for severance was again denied.  There was no separate consideration of the admissibility of the similar fact evidence aside from the motion for severance.


 

2.    Ruling on Admissibility of Hair Samples and DNA Evidence

 

29                               Several voir dires were held to determine the admissibility of the hair samples obtained from the appellant in 1990.  The trial judge found that the central issue in determining whether the hair samples and DNA evidence derived from them were admissible was not whether the appellant’s consent in 1990 was limited to the Blanchard investigation, but whether an informed and valid consent can be limited in law.  In his opinion, there was no principle in law that made it unreasonable or unlawful for the police to resort to the samples already in their possession as a result of the consent given in 1990.  The appellant’s later refusal to provide a hair or blood sample in 1993 did not affect this conclusion.  Moreover, the trial judge found that the initial consent to the taking of the hair samples was not limited either to using those samples for the purposes of a simple comparison with hairs found at the scene of the Blanchard murder or to using those samples only for the purposes of the 1990 investigation. Such a limitation would contradict the appellant’s own understanding that any information obtained from the samples could be used against him.

 

3.    Charge to the Jury

 


30                               The trial judge instructed the jury on the use of the similar fact evidence.  He stated that the evidence on the Blanchard killing was admissible in proving the guilt of the appellant for the Umphrey killing and vice versa.  The jury could use this evidence only for the purpose of deciding that the appellant was the person who committed the offences described in both counts, i.e., to resolve the issue of identity.  When examining the evidence on both counts, they were instructed not to conclude that the appellant was a person whose character or disposition was such that he likely committed the offences.  The trial judge stated that they could infer from the evidence, although they were not required to do so, that the incident mentioned in the Blanchard count and the incident mentioned in the Umphrey count had characteristics in common that were so strikingly similar that it was likely that they were committed by one person.  When deciding whether there were similarities between the two incidents, they should examine all the evidence and consider whether or not the acts were strikingly similar and demonstrated a unifying pattern.  The trial judge then gave the jury some examples of the similarities between the counts.

 

31                               The trial judge went on to tell the jury that if they concluded that the Blanchard count and the Umphrey count were likely committed by one person, then the evidence on each count could assist them in deciding whether the appellant committed the offences charged in both counts.  If, however, they did not draw the inference that the two offences were likely committed by one person, then in reaching a decision on any count they must only consider the evidence relating to that count and put out of their minds the evidence on the other count.  The trial judge also stated that if they accepted the evidence on the Umphrey count and concluded that the appellant was guilty of that count, and they also concluded that the Blanchard count was likely committed by the same person, they could use the evidence, particularly of the use of the sharp‑edged instrument, to confirm or support the evidence of the other witnesses and the finding of the ring and the purple fibres.  The trial judge concluded by telling the jury that they must keep in mind that the appellant could not be convicted of either the Blanchard count or the Umphrey count unless they were satisfied beyond a reasonable doubt that he was guilty as charged.

 


B.  Court of Appeal (1997), 92 B.C.A.C. 286 (Hinds J.A. for the court)

 

32                               The appellant argued before the Court of Appeal that the trial judge’s charge regarding similar fact evidence was based on R. v. Simpson (1977), 35 C.C.C. (2d) 337 (Ont. C.A.), which should not be followed in light of decisions from other courts of appeal that take a different approach.  However, Hinds J.A. found that the Simpson decision was followed by the British Columbia Court of Appeal in R. v. Lawson (1994), 45 B.C.A.C. 14.  Lawson, in turn, was referred to with approval in another British Columbia Court of Appeal decision, R. v. Doan (1996), 81 B.C.A.C. 192.  In Lawson, the court held at p. 21 as follows:

 

Counsel for the appellant made two points.

 

The first was that the word “likely” used by the trial judge sets the wrong standard.  He says that the standard in relation to the element of identity and the element of intent should be that at least those elements must be established beyond a reasonable doubt on the count that is said to be similar without resort to evidence outside that count before using the evidence on that count to help to prove intent or identity on the count actually being considered.  By that he meant that at least one count must be proved beyond a reasonable doubt on the basis of evidence relating exclusively to that count.  As counsel said “there must be at least one anchor”.  In my opinion, that point is not in accordance with the authority of R. v. Simpson and I would not accede to it.

 


33                               Hinds J.A. concluded that the present law in British Columbia on the use of similar fact evidence is set forth in Lawson, and is based on the principles in Simpson.  He found that the trial judge’s charge was in conformity with those principles and followed the suggested wording set forth in G. Ferguson, CRIMJI:  Canadian Criminal Jury Instructions (3rd ed. 1997 (loose-leaf)), vol. 1, 4.61.  Furthermore, the trial judge’s instructions on the use to which the jury could put similar fact evidence complied with the principle expressed in R. v. Morin, [1988] 2 S.C.R. 345, at pp. 360‑62, that the criminal standard of proof applies to the determination of the ultimate issue of guilt or innocence and not to individual items of evidence.

 

34                               The appellant also argued that the hair samples given in 1990 should not have been used in a subsequent police investigation.  The appellant contended that the subsequent use of the samples vitiated the consent given in 1990, and that the seizure of the samples therefore violated his rights under s. 8  of the Charter .  He further contended that the DNA evidence should not have been admitted under s. 24(2)  of the Charter .  Hinds J.A. noted that this issue was left undecided by this Court in R. v. Borden, [1994] 3 S.C.R. 145.  Counsel for the appellant argued that the effect of the police using the hair samples taken in July 1990 for the investigation of the Umphrey murder was to enable them to maintain a DNA bank.  The government is specifically prohibited from maintaining DNA samples under the recent DNA legislation.  See the Code, ss. 487.04 et seq.

 

35                               Hinds J.A. disagreed with that submission.  He felt that the legislation pertaining to the seizure of DNA material is not relevant to the use of those substances that a person willingly provides to the police.  The appellant’s scalp and pubic hairs had not been taken by force or threat of force and thus did not constitute conscripted evidence.  The obtaining of the appellant’s hair samples on July 26, 1990 did not violate his s. 8  rights.  Thereafter, the samples remained in the custody and control of the RCMP.  The appropriate time to determine whether the appellant’s s. 8  rights were violated was on July 26, 1990, the date upon which the samples were obtained by the police.

 


36                               Even if the appropriate date for the determination was March 16, 1993 when the samples were retrieved from the RCMP laboratory, the appellant’s s. 8  rights were not violated.  On March 16, 1993, the appellant had no reasonable expectation of privacy with respect to the hair samples and the police seized the samples in accordance with a validly issued search warrant.  The appeal from conviction was dismissed.

 

III.  Analysis

 

A.  Admissibility of Similar Fact Evidence

 

1.    Probative Value

 

37                               This appeal concerns the proper charge to a jury on the use of similar fact evidence.  This issue necessarily requires a careful review of the role of the trial judge in considering the admission of similar fact evidence.  This is necessary in order to place the function of the jury in weighing similar fact evidence in its proper context.

 

38                               The rule allowing for the admissibility of similar fact evidence is perhaps best viewed as an “exception to an exception” to the basic rule that all relevant evidence is admissible.  Relevance depends directly on the facts in issue in any particular case.  The facts in issue are in turn determined by the charge in the indictment and the defence, if any, raised by the accused.  See Koufis v. The King, [1941] S.C.R. 481, at p. 490.  To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue.  The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue”.  See Sir Richard Eggleston, Evidence, Proof and Probability (2nd ed. 1978), at p. 83.  As a consequence, there is no minimum probative value required for evidence to be relevant.  See R. v. Morris, [1983] 2 S.C.R. 190, at pp. 199‑200.

 


39                               Evidence of propensity or disposition (e.g., evidence of prior bad acts) is relevant to the ultimate issue of guilt, in so far as the fact that a person has acted in a particular way in the past tends to support the inference that he or she has acted that way again.  Though this evidence may often have little probative value, it is difficult to say it is not relevant.  In this regard, I disagree in part with Lord Hailsham’s judgment in Director of Public Prosecutions v. Boardman, [1975] A.C. 421.  He wrote, at p. 451 that “[w]hen there is nothing to connect the accused with a particular crime except bad character or similar crimes committed in the past, the probative value of the evidence is nil and the evidence is rejected on that ground”.  I think this statement may go too far, and find the approach taken by Lamer J., as he then was, in Morris, supra, is more accurate.  He stated, at p. 203:

 

Disposition the nature of which is of no relevance to the crime committed has no probative value and . . . for that reason excluded.  But if relevant to the crime, even though there is nothing else connecting the accused to that crime, it is of some probative value, be it slight, and it should be excluded as inadmissible not as irrelevant.  [Emphasis added.]

 


40                               Thus evidence of propensity or disposition may be relevant to the crime charged, but it is usually inadmissible because its slight probative value is ultimately outweighed by its highly prejudicial effect.  As Sopinka J. noted in R. v. D. (L.E.), [1989] 2 S.C.R. 111, at pp. 127‑28, there are three potential dangers associated with evidence of prior bad acts:  (1) the jury may find that the accused is a “bad person” who is likely to be guilty of the offence charged; (2) they may punish the accused for past misconduct by finding the accused guilty of the offence charged; or (3) they may simply become confused by having their attention deflected from the main purpose of their deliberations, and substitute their verdict on another matter for their verdict on the charge being tried.  Because of these very serious dangers to the accused, evidence of propensity or disposition is excluded as an exception to the general rule that all relevant evidence is admissible.

 

41                               However, as Lord Hailsham stated in Boardman, supra, at p. 453, “what is not to be admitted is a chain of reasoning and not necessarily a state of facts” (emphasis added).  That is, disposition evidence which is adduced solely to invite the jury to find the accused guilty because of his or her past immoral conduct is inadmissible.  However, evidence of similar past misconduct may exceptionally be admitted where the prohibited line of reasoning may be avoided.  In R. v. B. (C.R.),  [1990] 1 S.C.R. 717, McLachlin J. writing for the majority carefully reviewed the issue of similar fact evidence.  She reviewed the reasoning put forward in Boardman, supra, and, at p. 730 observed:

 

This view of similar fact evidence posits a test which is related to, yet distinct from the general rule that evidence is not admissible if its prejudicial effect outweighs its probative value:  see R. v. Wray, [1971] S.C.R. 272.  That rule is an exclusionary rule applied to evidence which would otherwise be admissible.  The reverse is the case with similar fact evidence.  In determining its admissibility, one starts from the proposition that the evidence is inadmissible, given the low degree of probative force and the high degree of prejudice typically associated with it.  The question then is whether, because of the exceptional probative value of the evidence under consideration in relation to its potential prejudice, it should be admitted notwithstanding the general exclusionary rule.

 

After a review of the other pertinent authorities she concluded at pp. 734‑35:

 


This review of the jurisprudence leads me to the following conclusions as to the law of similar fact evidence as it now stands in Canada.  The analysis of whether the evidence in question is admissible must begin with the recognition of the general exclusionary rule against evidence going merely to disposition.  As affirmed in Boardman and reiterated by this Court in Guay, Cloutier, Morris, Morin and D. (L.E.), evidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule, inadmissible.  Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value of the proposed evidence outweighs its prejudicial effect.  In a case such as the present, where the similar fact evidence sought to be adduced is prosecution evidence of a morally repugnant act committed by the accused, the potential prejudice is great and the probative value of the evidence must be high indeed to permit its reception.  The judge must consider such factors as the degree of distinctiveness or uniqueness between the similar fact evidence and the offences alleged against the accused, as well as the connection, if any, of the evidence to issues other than propensity, to the end of determining whether, in the context of the case before him, the probative value of the evidence outweighs its potential prejudice and justifies its reception.

 

42                               It can be seen that in considering whether similar fact evidence should be admitted the basic and fundamental question that must be determined is whether the probative value of the evidence outweighs its prejudicial effect.  As well it must be remembered that a high degree of deference must be given to the decision of a trial judge on this issue.  See B. (C.R.), supra, at pp. 732‑33.

 

43                               It follows that where identity is at issue in a criminal case and the accused is shown to have committed acts which bear a striking similarity to the alleged crime, the jury is not asked to infer from the accused’s habits or disposition that he is the type of person who would commit the crime.  Instead, the jury is asked to infer from the degree of distinctiveness or uniqueness that exists between the commission of the crime and the similar act that the accused is the very person who committed the crime.  This inference is made possible only if the high degree of similarity between the acts renders the likelihood of coincidence objectively improbable.  See Hoch v. The Queen (1988), 165 C.L.R. 292 (Aust. H.C.).  That is, there is always a possibility that by coincidence the perpetrator of the crime and the accused share certain predilections or that the accused may become implicated in crimes for which he is not responsible.  However, where the evidence shows a distinct pattern to the acts in question, the possibility that the accused would repeatedly be implicated in strikingly similar offences purely as a matter of coincidence is greatly reduced.  Sopinka J. in Morin, supra, where similar fact evidence was used to prove identity, made this point clear (at p. 367):


 

In similar fact cases it is not sufficient to establish that the accused is a member of an abnormal group with the same propensities as the perpetrator.  There must be some further distinguishing feature.  Accordingly, if the crime was committed by someone with homosexual tendencies, it is not sufficient to establish that the accused is a practising homosexual or indeed has engaged in numerous homosexual acts.  The tendered evidence must tend to show that there was some striking similarity between the manner in which the perpetrator committed the criminal act and such evidence.

 

See also R. v. Scopelliti (1981), 63 C.C.C. (2d) 481 (Ont. C.A.), at p. 496, per Martin J.A. (evidence of propensity is not admissible “unless the propensity is so highly distinctive or unique as to constitute a signature”).

 

44                               Because similar fact evidence is admitted on the basis of an objective improbability of coincidence, the evidence necessarily derives its probative value from the degree of similarity between the acts under consideration.  The probative value must, of course, significantly outweigh the prejudice to the accused for the evidence to be admissible.  See B. (C.R.), supra.  However, the majority in B. (C.R.), at pp. 732‑33, rejected the proposition that the evidence must show a “striking similarity” between the acts in question in order for the evidence to have the requisite probative value.  I agree that the requirement of “striking similarity” needs to be qualified.  This point is carefully made in R. v. P., [1991] 3 All E.R. 337 (H.L.), where the accused was charged with the rape of both his daughters and with committing incest with them.  The counts were tried together, and the evidence of both daughters was admitted in relation to each count to prove the commission of the crime (at p. 348):

 


When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it, notwithstanding the prejudicial effect of admitting the evidence.  This relationship, from which support is derived, may take many forms and while these forms may include ‘striking similarity’ in the manner in which the crime is committed, . . . the necessary relationship is by no means confined to such circumstances.  Relationships in time and circumstances other than these may well be important relationships in this connection.  Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary.  To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it,  is to impose an unnecessary and improper restriction upon the application of the principle.  [Emphasis added.]

 

Since the evidence of both girls described a prolonged course of conduct involving the use of force and general domination, the circumstances, taken together, gave strong probative force to the evidence of one in respect of the other, notwithstanding that the manner of the commission of the alleged crimes did not disclose a “striking similarity”.

 


45                               Instead, 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.  This conclusion ensures that the evidence has sufficient probative force to be admitted, and will involve different considerations in different contexts.  Where, as here, similar fact evidence is adduced on the issue of identity, there must be a high degree of similarity between the acts for the evidence to be admitted.  For example, a unique trademark or signature will automatically render the alleged acts “strikingly similar” and therefore highly probative and admissible.  In the same way, a number of significant similarities, taken together, may be such that by their cumulative effect, they warrant admission of the evidence.  Where identity is at issue ordinarily, the trial judge should review the manner in which the similar acts were committed ‑‑ that is to say, whether the similar acts involve a unique trademark or reveal a number of significant similarities.  This review will enable him or her to decide whether the alleged similar acts were all committed by the same person.  This preliminary determination establishes the objective improbability that the accused’s involvement in the alleged acts is the product of coincidence and thereby gives the evidence the requisite probative force.  Thus, where the similar fact evidence is adduced to prove identity, once this preliminary determination is made, the evidence related to the similar act (or count, in a multi‑count indictment) may be admitted to prove the commission of another act (or count).

 

46                               By way of summary, McLachlin J.’s statement of the law relating to the admissibility of similar fact evidence in R. v. C. (M.H.), [1991] 1 S.C.R. 763, is apt.  She put the proposition with great clarity, at pp. 771‑72:

 

Such evidence is likely to have a severe prejudicial effect by inducing the jury to think of the accused as a “bad” person.  At the same time it possesses little relevance to the real issue, namely, whether the accused committed the particular offence with which he stands charged.  There will be occasions, however, where the similar act evidence will go to more than disposition, and will be considered to have real probative value.  That probative value usually arises from the fact that the acts compared are so unusual and strikingly similar that their similarities cannot be attributed to coincidence.  Only where the probative force clearly outweighs the prejudice, or the danger that the jury may convict for non‑logical reasons, should such evidence be received.

 


47                               C. (M.H.), supra, left open the issue as to the standard of proof which should be applied by the trial judge where similar fact evidence is adduced to prove identity.  In this regard, it must be remembered that the admissibility of similar fact evidence involves an analysis not normally undertaken by a trial judge.  As a general rule, a trial judge will admit evidence shown to be relevant, and will not engage in an evaluation of the probative value or weight of the evidence.  If the trial judge is called on to make a preliminary finding of fact as a precondition to admissibility, this finding is usually unrelated to the quality or reliability of the evidence itself.  See R. v. Egger, [1993] 2 S.C.R. 451, at p. 474.  Indeed, the judge must refrain from evaluating the quality, weight or reliability of evidence when determining admissibility since the weight to be given to evidence is properly the province of the jury.  See R. v. Charemski, [1998] 1 S.C.R. 679.  However, in determining the admissibility of similar fact evidence the trial judge must, to a certain extent, invade this province.  As Professor Smith stated in Case and Comment on R. v. Hurren, [1962] Crim. L. Rev. 770, at p. 771:

 

It should be noted that judges commonly distinguish facts as going to weight rather than admissibility (see, e.g., R. v. Wyatt); but it is submitted that, as regards similar fact evidence, no sharp line can be drawn and that admissibility depends on weight.

 

48                               Thus, 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.  Where the fact in issue is the identity of the perpetrator of the crime, then in the usual course of events the trial judge must assess the degree of similarity demonstrated by the manner in which the acts in question were committed to determine whether it is likely the same person committed the alleged similar acts.  Once it is determined on a balance of probabilities that the same person committed the alleged similar acts, the similar fact evidence may be admitted to prove that the accused committed the offence or offences in question.

 


49                               In determining whether similar fact evidence should be admitted to prove identity, the trial judge must have regard to the manner in which the alleged similar acts were committed.  In general, evidence linking the accused to each alleged similar act should not be part of this evaluation.  As Peter K. McWilliams, states in Canadian Criminal Evidence (3rd ed. 1988 (loose‑leaf)), at p. 11‑26.1, “[t]he link [to the accused] . . . is distinct from the link or nexus . . . which goes to the nature of the act and relates to its similarity or relevancy which is such as to overcome the general exclusionary rule” (emphasis in original).  This distinction is made clear in Case and Comment on R. v. Brown, Wilson, McMillan and McClean, [1997] Crim. L. Rev. 502, at p. 503 (as reported by Richard Percival):

 

. . . There was evidence of striking similarities between the two groups of offences, and there was a signature or other special feature. . . . Once there was this link between the groups of offences, then evidence that linked a defendant with each group of offences was admissible against him on the other group.  [Emphasis added.]

 

See also R. v. Barnes, [1995] 2 Cr. App. R. 491 (C.A.), at pp. 496‑98.  In other words, the similarity of the acts indicates whether one person committed the crimes; in most cases, evidence as to the accused’s connection to each similar act indicates whether the accused committed the crimes.  Only after the trial judge has considered the manner of the commission of the similar acts and is satisfied that there is evidence which could lead the jury to conclude that all the acts were committed by one person should he or she admit the evidence related to each act for the jury’s consideration, including the evidence of the accused’s involvement in each similar act.

 

50                               In summary, in considering the admissibility of similar fact evidence, the basic rule is that the trial judge must first determine whether the probative value of the evidence outweighs its prejudicial effect.  In most cases where similar fact evidence is adduced to prove identity it might be helpful for the trial judge to consider the following suggestions in deciding whether to admit the evidence:

 


(1)  Generally where similar fact evidence is adduced to prove identity a high degree of similarity between the acts is required in order to ensure that the similar fact evidence has the requisite probative value of outweighing its prejudicial effect to be admissible.  The similarity between the acts may consist of a unique trademark or signature on a series of significant similarities.

 

(2)  In assessing the similarity of the acts, the trial judge should only consider the manner in which the acts were committed and not the evidence as to the accused’s involvement in each act.

 

(3)  There may well be exceptions but as a general rule if there is such a degree of similarity between the acts that it is likely that they were committed by the same person then the similar fact evidence will ordinarily have sufficient probative force to outweigh its prejudicial effect and may be admitted.

 

(4)  The jury will then be able to consider all the evidence related to the alleged similar acts in determining the accused’s guilt for any one act.

 

Once again these are put forward not as rigid rules but simply as suggestions that may assist trial judges in their approach to similar fact evidence.

 

51                               The test for admissibility of similar fact evidence adduced to prove identity is the same whether the alleged similar acts are definitively attributed to the accused, or are the subject of a multi‑count indictment against the accused.  See Boardman, supra, at p. 896, per Lord Wilberforce.

 


52                               However, where the similar acts are alleged as part of a multi‑count indictment, the consideration of the admissibility of similar fact evidence will have to be taken into account in deciding whether the counts should be severed.  Nevertheless, the trial judge should be careful not to confuse admissibility with severance.  A motion to sever under s. 591(3)(a) of the Code must be brought by the accused, who bears the burden of establishing on a balance of probabilities that the interests of justice require an order for severance.  Yet the burden of demonstrating that similar fact evidence should be admitted must be borne by the Crown.  These respective burdens may involve the consideration of similar factors, but as Lord Scarman noted in R. v. Scarrott (1977), 65 Cr. App. R. 125 (C.A.), at p. 135, “[i]t does not follow that because a multi‑count indictment has been allowed to proceed that therefore the evidence given will be evidence on all the counts contained in the indictment”.  Thus, to paraphrase the Manitoba Court of Appeal in R. v. Khan (1996), 49 C.R. (4th) 160, at p. 167, notwithstanding the trial judge’s refusal to sever the counts in a multi‑count indictment, it remains open to him or her, as the evidence progresses at trial, to determine as a matter of law that evidence on one count is not admissible as similar fact evidence on the other counts.  The assessment of similar fact evidence and the determination of its probative value and admissibility places an onerous burden* on the trial judge.  It is a task that must be undertaken with great care.

 

2.    Link to the Accused

 


53                               Where the similar fact evidence adduced to prove identity suggests that the same person committed the similar acts, then logically this finding makes the evidence linking the accused to each similar act relevant to the issue of identity for the offence being tried. Similarly, in a multi‑count indictment, the link between the accused and any one count will be relevant to the issue of identity on the other counts which disclose a striking similarity in the manner in which those offences were committed.

 

54                               A link between the accused and the alleged similar acts is, however, also a precondition to admissibility.  This requirement was set forth in R. v. Sweitzer, [1982] 1 S.C.R. 949, at p. 954:

 

Before evidence may be admitted as evidence of similar facts, there must be a link between the allegedly similar facts and the accused.  In other words there must be some evidence upon which the trier of fact can make a proper finding that the similar facts to be relied upon were in fact the acts of the accused for it is clear that if they were not his own but those of another they have no relevance to the matters at issue under the indictment.

 

Similarly, in Harris v. Director of Public Prosecutions, [1952] A.C. 694 (H.L.), it was held, at p. 708, that “evidence of ‘similar facts’ cannot in any case be admissible to support an accusation against the accused unless they are connected in some relevant way with the accused and with his participation in the crime”.

 

55                               Should the trial judge be required to conclude not only that the evidence suggests that the acts are the work of one person with sufficient force to outweigh the prejudicial effect of the evidence, but that they also are likely the acts of the accused?  This is the approach advocated by Professor R. Mahoney in “Similar Fact Evidence and the Standard of Proof”, [1993] Crim. L. Rev. 185, at pp. 196‑97, and is implicitly favoured by those courts which have endorsed the “anchor” or “sequential” approach to similar fact evidence.  See, e.g., R. v. Ross, [1980] 5 W.W.R. 261 (B.C.C.A.); R. v. J.T.S., [1997] A.J. No. 125 (QL) (C.A.).

 


56                               The suggestion that the evidence linking the accused to the similar acts must also link the acts to the accused goes too far.  Once the trial judge has concluded that the similar acts were likely the work of one person and that there is some evidence linking the accused to the alleged similar acts, it is not necessary to conclude that the similar acts were likely committed by the accused.  The answer to this question may well determine guilt or innocence.  This is the very question which the trier of fact must determine on the basis of all the evidence related to the similar acts, including of course the accused’s involvement in each act.  The standard set out in Sweitzer should be maintained.  This only requires that the trial judge be satisfied that there is some evidence which links the accused to the similar acts.

 

57                               Nevertheless, it must be noted that both Sweitzer, supra, and Harris, supra, suggest that evidence of mere opportunity will not suffice to establish a sufficient “link to the accused” to render similar fact evidence admissible.  This limitation is explained by Viscount Simon’s statement in Harris, supra, at p. 708 that the similar acts must be connected “in some relevant way with the accused and with his participation in the crime” (emphasis added).  Evidence of mere opportunity showing no more than the possibility that the similar act is that of the accused will not suffice to show the accused’s participation in the alleged similar act.  Though the low standard set in Sweitzer is appropriate and flexible, evidence which discloses no more than a mere possibility that the alleged similar act is the act of the accused will not suffice to render the similar fact evidence admissible.

 

B.  Use of Similar Fact Evidence by the Jury

 


58                               The provincial courts of appeal have employed two very different approaches to the use of similar fact evidence.  The first approach, which has been called a “pooling” or “cumulative” approach, is derived from the decision of the Ontario Court of Appeal in Simpson, supra, per Martin J.A.  See also Lawson, supra; R. v. Eng (1995), 56 B.C.A.C. 18.  On this approach, the jury is instructed to examine the similarities between the counts charged in the indictment and to decide, as a preliminary matter, whether the offences were likely committed by one person.  Only if they are satisfied on a balance of probabilities that the offences were committed by one person may they consider the evidence of each count in determining whether the accused committed the other offences.  If they are unable to make this preliminary finding, they must consider the evidence on each count separately in determining the accused’s innocence or guilt.  The jury must also be reminded that they may not convict the accused on any count unless they are satisfied beyond a reasonable doubt that he or she is guilty of that offence.

 

59                               The trial judge in this case instructed the jury in accordance with Simpson.  He stated:

 

If you conclude that Count 1 and Count 2 were likely committed by one person, then the evidence on each count may assist you in deciding whether Brian Arp committed the offences charged in both counts.  However, if you do not draw the inference that the two offences were likely committed by one person, then in reaching a decision on any count you must only consider the evidence relating to that count and put out of your minds the evidence  on the other count.

 

                                                                   . . .

 

Keep in mind that the accused cannot be convicted of either Count 1 or Count 2 unless you are satisfied beyond a reasonable doubt that he is guilty as charged.

 


60                               The second approach, which has been called the “anchor” or “sequential” approach, has been adopted primarily by the Alberta Court of Appeal:  see R. v. Studer (1996), 181 A.R. 399; R. v. N. (R.S.) (1995), 31 Alta. L.R. (3d) 424; Ross, supra.  This approach is normally used in cases where the similar fact evidence arises from an uncharged act, rather than from another count in the same indictment: see CRIMJI, supra, 4.60.  When applied in the context of a multi‑count indictment, the approach requires that the jury must determine first that the accused committed one of the offences charged beyond a reasonable doubt, using only the evidence relevant to that count.  Only then may the jury proceed to consider the circumstances of that offence as similar fact evidence with regard to the remaining counts.

 

61                               In the case at bar, the trial judge also instructed the jury in accordance with this approach.  He stated:

 

If you accept the evidence in Count 2 of the Indictment [the Umphrey murder] and conclude that Brian Arp is guilty of that count, and you also decide that the offence in Count 1 [the Blanchard murder] was likely committed by the same person, you may use the evidence, particularly of the use of the sharp‑edged implement, to confirm or support the evidence [relating to Count 1].

 

62                               The appellant submits that the trial judge erred in his charge to the jury because he failed to direct the jury that before using the evidence related to one murder count to support a finding of guilt on the other murder count, they must first conclude beyond a reasonable doubt that (1) that the accused committed one of the two murder counts, using only the evidence related to that count; or (2) that the same person committed both counts.

 

63                               To resolve these issues, it is necessary to determine not only the applicable standard of proof where similar fact evidence is used by a jury, but also to set out the correct approach to the use of that evidence.  The algebraic possibilities raised by these two questions are impressive.  Rather than attempt to evaluate each permutation or combination separately, a review of basic principles will lead to the proper approach.


 

1.    Applicable Principles

 

64                               The first point to be made is that no standard of proof applies to the “use” of evidence or to evidence itself.  Standards of proof apply only to issues of fact.  See Morin, supra.  When similar fact evidence (like any other circumstantial evidence) is adduced to prove identity, the jury is invited to draw inferences and make findings of fact from that evidence.  The probative value of similar fact evidence is based on reasoning through probability.  The force of the evidence subsists in the proposition that it is unlikely that the accused would be implicated more than once in offences which are unique or markedly similar.  It is the unlikelihood of coincidence that gives the evidence its probative force.

 

65                               The issue in every case is whether the probative value of the evidence outweighs its prejudicial effect.  As noted earlier, as a general rule where similar fact evidence is tendered to prove identity if the trial judge is satisfied that it is likely that the same person committed both the similar act and the act in question then the probative value of these similar acts will outweigh its prejudicial effect and the evidence will be admitted.  If the jury is to rely on similar fact evidence, they too must conclude that the same person committed the alleged similar acts.  Any apparent overlap in the functions of judge and jury exists because for similar fact evidence, admissibility frequently depends on weight.  See Hurren comment, supra.  As Martin J.A. stated in Simpson, supra, at pp. 345-46:

 


It was, of course, for the Judge to decide as a question of law whether the evidence on each count was admissible on the other.  His decision in that respect, in the circumstances, depended upon his being satisfied that the similarities in the offences were such as to be capable of supporting a reasonable inference that both offences were likely committed by one man.  It was entirely within the province of the jury, however, whether they would draw that inference; whether they drew such inference would depend upon their view of the similarities in the circumstances of the two offences.  [Emphasis added.]

 

Thus, the main issue in this appeal is the proper standard of proof to apply to the primary inference drawn from the similar fact evidence ‑‑ i.e., should the jury be satisfied on a balance of probabilities or beyond a reasonable doubt that the same person committed the acts in question?

 

66                               To state the issue in this manner effectively disposes of the anchor or sequential approach.  This must follow because if the probative value of similar fact evidence, as circumstantial evidence, lies in the unlikelihood of coincidence, it simply does not make sense to require one of the allegations to be proved beyond a reasonable doubt as a prerequisite to the trier of fact’s consideration of it.  Though the similar fact evidence, standing alone, may fall short of proof beyond a reasonable doubt, it can be relied upon to assist in proving another allegation beyond a reasonable doubt.  Two separate allegations can support each other to the point of constituting proof beyond a reasonable doubt, even where a reasonable doubt may have existed in relation to each in isolation.  See R. v. White, [1998] 2 S.C.R. 72, at para. 44, citing R. v. Bouvier (1984), 11 C.C.C. (3d) 257 (Ont. C.A.), per Martin J.A., aff’d [1985] 2 S.C.R. 485.

 


67                               This reasoning certainly applies when similar fact evidence is admitted to prove identity.  In those circumstances the reasoning process flows from the similarity of the acts themselves.  As the intervener the Attorney General for Ontario points out, the probative value of the evidence does not depend on a finding that both offences were necessarily committed by the same person.  Rather, it is the likelihood that they had the same perpetrator that sufficiently narrows the scope for coincidence so as to give the evidence legitimate probative value.  The unlikelihood of an accused’s twice being implicated in two very similar offences may furnish circumstantial evidence of his or her guilt for both.  That circumstance, when combined with other evidence in support of each charge, may add up to guilt beyond a reasonable doubt.

 

68                               The appellant argues that it is contrary to the presumption of innocence and principles of fundamental justice for an accused to be convicted on the basis of evidence pertaining to a separate count or similar act, even though the Crown has not proven beyond a reasonable doubt the critical preliminary fact that one person committed both counts.  I cannot accept this submission.  As the Attorney General for Ontario stated, it cannot be presumed that because a preliminary determination of fact is not proven to the criminal standard, that the trier of fact is thereby invited to make use of evidence which lacks its purported probative value.  It is not inherently unfair that an accused may be convicted even though the jury entertains a doubt as to whether similarity between the acts, on its own, establishes that the same person committed both acts.  The appellant’s argument presumes that similarity proven to a lesser degree of certainty is without probative value.  If the appellant is right, then on the same reasoning, it would have to be concluded that R. v. Carter, [1982] 1 S.C.R. 938, was wrongly decided.

 


69                               In Carter, it was held that in order for a jury to use the statement of a co‑conspirator against an accused as an exception to the hearsay rule, the jury must first conclude, on a balance of probabilities and on the basis of evidence directly admissible against the accused, that the witness and the accused were members of the same conspiracy.  Only after this determination is made can the jury make substantive use of the hearsay statements.  The Court declined to apply the reasonable doubt standard to that preliminary finding of fact, since to do so would have short‑circuited the jury’s determination of the ultimate issue in the case, i.e., the guilt of the accused on the charge of conspiracy.

 

70                               More generally, in R. v. Evans, [1993] 3 S.C.R. 653, it was held that a preliminary finding of fact governing the use of evidence is normally subject to the civil standard of proof, whether the finding is made by the trial judge at the stage of admissibility or by the jury at the outset of their deliberations.  The type of evidence at issue in Evans was an admission by the accused.  Sopinka J., writing for a majority of the Court, stated as follows, at p. 668:

 

This Court has affirmed that preliminary questions of fact by the trier of fact may be decided on a balance of probabilities. [Citing Carter, supra.]

 

                                                                   . . .

 

If there is some evidence to permit the issue to be submitted to the trier of fact, the matter must be considered in two stages.  First, a preliminary determination must be made as to whether, on the basis of evidence admissible against the accused, the Crown has established on a balance of probabilities that the statement is that of the accused.  If this threshold is met, the trier of fact should then consider the contents of the statement along with other evidence to determine the issue of innocence or guilt.

 

The general principles enunciated in these cases indicate that the jury should determine, on a balance of the probabilities, whether the similarities between the acts establishes that the two counts were committed by the same person.  If that threshold is met, the jury can then consider all the evidence relating to the similar acts in determining whether, beyond a reasonable doubt, the accused is guilty.

 


71                               However, the general rule that preliminary findings of fact may be determined on a balance of probabilities is departed from in those certainly rare occasions when admission of the evidence may itself have a conclusive effect with respect to guilt.  For example, where the Crown adduces a statement of the accused made to a person in authority, the trial judge must be satisfied beyond a reasonable doubt of the voluntariness of the statement.  That evidence may of itself, if accepted as true, provide conclusive proof of guilt.  Since doubt about the statement’s voluntariness also casts doubt on its reliability, proof beyond a reasonable doubt is warranted.  See Ward v. The Queen, [1979] 2 S.C.R. 30.  If this were not the rule, the jury would be permitted to rely on evidence which it could accept as extremely cogent even though the inherent reliability of that evidence was in doubt.

 

72                               Similar fact evidence, on the other hand, as circumstantial evidence, must be characterized differently, since, by its nature, it does not carry the potential to be conclusive of guilt.  It is just one item of evidence to be considered as part of the Crown’s overall case.  Its probative value lies in its ability to support, through the improbability of coincidence, other inculpatory evidence.  As with all circumstantial evidence, the jury will decide what weight to attribute to it.  The mere fact that in a particular case, similar fact evidence might be assigned a high degree of weight by the trier is entirely different from the concept that, by its very nature, the evidence has the potential to be decisive of guilt.

 


73                               As the intervener the Attorney General for Ontario concedes, it is, of course, conceivable for a single item of circumstantial evidence to be the only evidence of an essential element of the offence in a given case.  The criminal standard of proof would have to be applied in those circumstances in order to ensure compliance with the requirement that every essential element in a criminal prosecution must be proven beyond a reasonable doubt.  Thus where the Crown’s case on the issue of identity is based entirely on the underlying unity between the similar acts, it follows that the standard of proof beyond a reasonable doubt will govern the jury’s determination whether one person must have committed both acts.

 

74                               The appellant argues that because similar fact evidence carries with it the danger of prejudicial misuse by the trier, a high standard of proof should be imposed as a precondition of its use.  However, the danger that a jury will misuse similar fact evidence by engaging in the prohibited line of reasoning is avoided by the strict test for admissibility which ensures that the evidence is sufficiently probative to outweigh the risk of prejudicial misuse, coupled with a cautionary instruction against making improper use of the evidence.  These safeguards ensure that the evidence is possessed of legitimate probative value before it reaches the trier of fact and that the jury will appreciate its true relevance.  Depriving the jury of resort to proper use of the evidence once it has been admitted would do nothing to guard against its improper use.

75                               On this basis, the correct approach to a consideration of similar fact evidence by a jury is the “cumulative” or “pooling” approach.  Thus, as a general rule where similar fact evidence is adduced to prove identity, the jury should be instructed that once they have concluded that there is sufficient likelihood that the same person committed the alleged similar acts, they may consider all the evidence relating to the similar acts in considering whether the accused is guilty of the act in question.

 

2.    Use of Evidence Underlying a Prior Acquittal as Similar Fact Evidence in a Subsequent Proceeding Against the Same Accused

 


76                               Finally, the appellant relies upon cases in which the Crown was prohibited from adducing as similar fact evidence in a subsequent trial of the same accused, testimony given in proceedings in which the accused was acquitted.  See, e.g., R. v. Cullen (1989), 52 C.C.C. (3d) 459 (Ont. C.A.); R. v. Verney (1993), 87 C.C.C. (3d) 363 (Ont. C.A.); R. v. M. (R.A.) (1994), 94 C.C.C. (3d) 459 (Man. C.A.); N. (R.S.), supra; R. v. Merdsoy (1994), 91 C.C.C. (3d) 517 (Nfld. C.A.).  The appellant contends that these cases conflict with the basic concept that similar fact evidence is available for use on the basis that two offences were likely committed by the same person.  The appellant submits that if a conviction is obtained on one count in a multi‑count indictment but the accused is acquitted on the other count, then the conclusion must be that the same person did not commit both offences, and the conviction is tainted to the extent that it was based on the similar fact evidence.  As the appellant points out, the problem of inconsistent verdicts would disappear if the jury were directed, at the outset of their deliberations, to decide beyond a reasonable doubt whether both offences were committed by the same person.  This approach fuses the two counts together as a necessary consequence of using similar fact evidence, so that the counts must stand or fall together.

 

77                               Those cases which have restricted the use of evidence underlying an acquittal as similar fact evidence in a subsequent trial of the same accused have done so on the basis of this Court’s decision in Grdic v. The Queen, [1985] 1 S.C.R. 810.  Lamer J. wrote for the majority of the Court, at p. 825:

 

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”. . . . To reach behind the acquittal, to qualify it, is in effect to introduce the verdict of “not proven”, which . . . has never been . . . part of our law.

 

                                                                   . . .

 

However, this does not mean that, for the purpose of the application of the doctrine of res judicata, the Crown is estopped from re‑litigating all or any of the issues raised in the first trial.  But it does mean that any issue, the resolution of which had to be in favour of the accused as a prerequisite to the acquittal, is irrevocably deemed to have been found conclusively in favour of the accused. . . .


78                               The principle enunciated in Grdic is fundamental to our system of justice.  It seeks to ensure that an accused need not repeatedly defend himself against the same allegations.  Nevertheless, in certain circumstances, the fact of an accused’s prior acquittal may have relevance to an ultimate issue in a subsequent trial. For example, in R. v. Ollis, [1900] 2 Q.B. 758, the accused was charged with obtaining money by false pretences.  He had obtained funds in exchange for a cheque that was later dishonoured.  The accused was acquitted at his first trial on the basis that when he gave the cheque to the complainant, he expected to receive funds to cover it.  The accused was later again indicted with obtaining money by false pretences, and at his second trial the Crown adduced the evidence of the first complainant as relevant to the accused’s guilty state of mind.  The court held that the evidence was properly admissible.  As Widgery J. stated in G. (an infant) v. Coltart, [1967] 1 All E.R. 271 (Q.B.), at p. 276:

 

. . . it may well happen that evidence relating to the charge giving rise to the acquittal will be called on the subsequent charge, but, if it is so called, it will be called because it has relevance to the subsequent charge quite independently of any question whether the accused was guilty or innocent on the first charge. [Emphasis added.]

 

On the basis of this reasoning, the evidence of the prior acquittal in Ollis was correctly admitted.  It was admitted to prove intent.  Even if the accused was acquitted of the first charge, the fact that he had been tried on similar charges once before went to his knowledge of wrongdoing irrespective of his guilt on the first charge.  The fact of his prior trial and acquittal could be admitted for this limited purpose, but would of course require a careful instruction from the trial judge.  Yet, in most situations, it will be unfair and inappropriate to admit the evidence underlying the prior acquittal as similar fact evidence in a subsequent trial of the same accused.

 


79                               Even so, I cannot accept the proposition that the principle set out in Grdic, supra, applies to verdicts rendered by the same trier of fact in respect of charges tried together in a single proceeding.  There is nothing unfair or logically irreconcilable about a jury having reasonable doubt whether the accused committed an act while also finding that it is likely that he committed it.  There may very well be good reasons to exclude similar fact evidence underlying a prior acquittal in a subsequent proceeding.  However, the principle has no application where the alleged similar acts are the subject of a multi‑count indictment.  There a careful instruction from the trial judge will be required.  It will be necessary to explain to the jury that evidence adduced on one count upon which the jury would acquit may be used in assessing the liability on another count or counts.

 

80                               In summary, where similar fact evidence is admitted to prove identity in a multi‑count indictment situation, a proper charge to the jury should include the following factors considered by Martin J.A. in Simpson, supra, and by this Court in Sweitzer, supra, and D. (L.E.), supra:

 

(1)   The trial judge should instruct the jury that they may find from the evidence, though they are not required to do so, that the manner of the commission of the offences is so similar that it is likely they were committed by the same person.

 

(2)   The judge should then review the similarities between the offences.

 

(3)   The jury should then be instructed that if they conclude it is likely the same person committed more than one of the offences, then the evidence on each of those counts may assist them in deciding whether the accused committed the other similar count or counts.


(4)   The trial judge must instruct the jury that if it accepts the evidence of the similar acts, it is relevant for the limited purpose for which it was admitted.

 

(5)   The jury must be warned that they are not to use the evidence on one count to infer that the accused is a person whose character or disposition is such that he or she is likely to have committed the offence or offences charged in the other count or counts.

 

(6)   If they do not conclude that it is likely the same person committed the similar offences, they must reach their verdict by considering the evidence related to each count separately, and put out of their minds the evidence on any other count or counts.

 

(7)   Finally, the trial judge must of course make it clear that the accused must not be convicted on any count unless the jury are satisfied beyond a reasonable doubt that he or she is guilty of that offence.

 

3.    Application to this Appeal

 

81                               The trial judge’s charge to the jury, based on Simpson, supra, that if they concluded both counts were likely committed by the same person, they could use the evidence on each count to assist in deciding the appellant’s guilt on both counts does not offend s. 7  or s. 11 (d) of the Charter .  The additional charge instructing the jury to decide whether the appellant was guilty of the Umphrey murder and to decide whether both counts were committed by one person before using the evidence on both counts in respect of either count could not have prejudiced the accused.  This ground of appeal must therefore fail.


 

C.  Admissibility of Hair Samples

 

82                               The appellant contends that the taking of his hair samples and their subsequent use in the Umphrey murder investigation infringed his rights under s. 7  and s. 8  of the Charter , and that the impugned evidence should have been excluded under s. 24(2)  of the Charter .  The appellant argues that the relevant time for determining whether there was a seizure in this case was July 26, 1990, when the appellant consented to give scalp and pubic hair samples in connection with the investigation of the Blanchard murder.  The appellant contends that this consent did not extend to the storage and subsequent use of the hair samples in the Umphrey investigation, and thus the seizure of the samples for a purpose beyond the scope of the original consent is unlawful.

 

83                               The appellant further argues that even if this Court finds the relevant time for determining whether there was a seizure is March 16, 1993 when the police seized the samples from the RCMP laboratory pursuant to a search warrant, an invalid consent on July 26, 1990 would undermine the lawfulness of the warrant.  The police would not have grounds to “re‑possess” the hair samples for use in the Umphrey investigation if their use was limited to the Blanchard investigation.  Thus any seizure under the search warrant would also violate s. 8  of the Charter .

 


84                               Both the appellant’s submissions are based upon his position that the taking of the samples for purposes beyond the scope of the consent he gave in 1990 constitutes an unlawful seizure.  As Iacobucci J. stated for the majority in Borden, supra, at p. 160, a seizure occurs whenever there is a non‑consensual taking by state officials of an item in which the citizen has a reasonable expectation of privacy.  See also R. v. Dyment, [1988] 2 S.C.R. 417.  Where the police seek to obtain blood or hair samples from a suspect, the expectation of privacy with respect to bodily integrity is clear.  Thus, where the police do not possess statutory authority to demand such a sample, it can only be taken with the consent of the suspect.

 

85                               Iacobucci J. writing for the majority in the Borden case carefully considered the meaning of consent.  In that case, two sexual assaults occurred within a few months of each other.  The accused was arrested for the second assault.  The accused complied with a police request to provide hair and blood samples in connection with the second assault.  However, the police hoped to use the blood sample to establish through DNA testing that the accused was the assailant in the first assault.  The accused was given virtually no indication that the samples were also being sought in connection with the first assault.  The majority held that there is a “link between the scope of a valid consent and the scope of the accused’s knowledge in relation to the consequences of that consent” (at p. 163).  Iacobucci J. observed that for the waiver to be valid the person purporting to consent must have sufficient information to give a valid consent.  It was put in this way at pp. 162‑63:

 

In order for a waiver of the right to be secure against an unreasonable seizure to be effective, the person purporting to consent must be possessed of the requisite informational foundation for a true relinquishment of the right.  A right to choose requires not only the volition to prefer one option over another, but also sufficient available information to make the preference meaningful. . . .

 

. . . [There is] a link between the scope of a valid consent and the scope of the accused’s knowledge in relation to the consequences of that consent.

 

He went on to conclude, at pp. 164‑65, that:

 


It was incumbent on the police, at a minimum, to make it clear to the respondent that they were treating his consent as a blanket consent to the use of the sample in relation to other offences in which he might be a suspect.  I express no opinion on the question of whether there would have been a seizure if the intention of the police to use the sample in respect of the [earlier] assault case, and the subsequent appropriation of the sample for that purpose, did not exist until some time after the seizure of the blood for use in the [later] case. . . .

 

The degree of awareness of the consequences of the waiver of the s. 8  right required of an accused in a given case will depend on its particular facts.  Obviously, it will not be necessary for the accused to have a detailed comprehension of every possible outcome of his or her consent.  However, his or her understanding should include the fact that the police are also planning to use the product of the seizure in a different investigation from the one for which he or she is detained.

 

Thus the general principle to be taken from Borden is that the scope of a valid consent may be limited by the extent of the accused’s knowledge and the information given to the accused as to the consequences of giving his consent.  The majority specifically left open the issue raised by the appellant in this case.

 

86                               It is noteworthy that both Lamer C.J. (Gonthier J. concurring) and McLachlin J. expressed an opinion on this issue in obiter.  As Lamer C.J. stated, at pp. 153‑54:

 

While I do not think it necessary or desirable to deal with the broader question of what is required for a valid consent, I agree with Iacobucci J. that the individual must be told about the anticipated purpose known to the police when the consent is requested.

 

However, in agreeing, I would not wish to be taken as accepting the general proposition that the consent, once validly given in the criminal law context, constrains the uses that may be made of the sample or the results of analysis thereof.  Such an approach runs the risk of considering investigations and consents to searches and seizures in watertight compartments.  [Emphasis added.]

 


McLachlin J., in short concurring reasons, agreed with the Chief Justice that the individual must be informed of the “anticipated purpose known to the police when the consent is requested” (at p. 171), but confined that observation to the facts of the Borden case.  She noted, at p. 171, that there is an important public interest in allowing the police to correlate evidence obtained on one offence with other outstanding offences.  In this regard, the comments of the Law Reform Commission in its Working Paper No. 34 on Investigative Tests (1984), at pp. 68‑69, are apposite:

 

. . . we are inclined to believe that the destruction of some records . . . is more likely to hamper the legitimate function of the police in the detection of crime and the protection of society as a whole than to constitute a useful and valuable safeguard for the privacy of innocent individuals.  Fingerprint records . . . might be crucial in the investigation of serious offences committed by persons who for one reason or another have escaped conviction for other offences of which they were in fact guilty.  Where they have been reasonably and lawfully obtained, can it be said that their retention “unreasonably or arbitrarily (interferes) with individual rights and freedoms . . .”?

 

87                               Nevertheless decisions of this court make it clear that if consent to the provision of bodily samples is to be valid it must be an informed consent.  That is to say persons consenting must be aware of their rights and as far as possible the consequences of their consent.  See Borden, supra, at pp. 161‑62; and R. v. Mellenthin, [1992] 3 S.C.R. 615, at p. 624.  Yet if neither the police nor the consenting person limit the use which may be made of the evidence then, as a general rule no limitation or restriction should be placed on the use of that evidence.  As Iacobucci J. explained in Borden, supra, at p. 164, “it will not be necessary for the accused to have a detailed comprehension of every possible outcome of his or her consent” in order for the consent to be valid.

 


88                               I agree that the obligation imposed on the police in obtaining a valid consent extends only to the disclosure of those anticipated purposes known to the police at the time the consent was given.  To  impose any greater obligation could, as the Chief Justice explained, at p. 154, “permit the construction of what would amount to elaborate evidentiary privileges based upon either the purposes for which the evidence was originally obtained or upon the information supplied at the time consent was given”.  This view accords with the majority’s finding, at p. 164, that “it will not be necessary for the accused to have a detailed comprehension of every possible outcome of his or her consent” in order for the consent to be valid.

 

89                               In the absence of any limitation placed by the police or the consenting party on the use to be made of the hair sample, there is nothing inherently unfair or illegal about the police retaining evidence obtained in connection with one investigation and using it in connection with a later investigation which was not anticipated by the police at the time the consent was given.  The police in this case could not possibly have foreseen that 30 months after they had lawfully obtained the appellant’s hair samples, the appellant would again be the suspect in another homicide.  Moreover, at the time the samples were taken, the appellant was clearly informed that if the police gathered “any evidence as a result of that hair sample, [it would be used] in court” (emphasis added).  Thus it is apparent that the appellant’s consent was not limited in any way, nor was it vitiated through a lack of knowledge as to the consequences of that consent.  The seizure of his hair samples in 1990 was both lawful and reasonable.

 

90                               In my view, once the appellant’s hair samples were taken by the police with the unconditional and reasonably informed consent of the appellant, he ceased to have any expectation of privacy in them.  As the learned trial judge stated in his ruling on admissibility of the evidence obtained from the hair samples:

 

It is, in my view, both illogical and undesirable to suggest that when a body sample, be it hair or blood, is voluntarily surrendered to the police with full recognition that it is to be used in the course of investigation that there continues to be any expectation of privacy extending to the “informational content” of that sample.  In my view, no such expectation real or implied existed. . . .

 


The trial judge considered the issue of the validity of the consent to the use of hair samples.  He considered the consent to be valid and on the evidence before him he could properly reach that conclusion.  In those circumstances his decision should be accepted.

 

91                               However, for the purpose of this appeal, it is unnecessary to consider whether the appellant may have had a subsisting privacy interest in the samples or in the information that could be obtained from them after he gave his unconditional consent to the authorities to take the samples.  The police seized the samples from the RCMP laboratory in 1993 pursuant to a search warrant.  The appellant has argued that an invalid consent on July 26, 1990 would undermine the lawfulness of the warrant, yet the consent given in 1990 was valid in all respects, and the validity of the warrant has not been assailed in any other way.  Thus, even if the appellant had a subsisting privacy interest in the hair samples, they were seized pursuant to a properly issued warrant.  The validity of that warrant has not been directly challenged.

 

IV.  Disposition

 

92                               In the result, the appeal is dismissed.

 

Appeal dismissed.

 

Solicitor for the appellant:  G. D. McKinnon, Q.C., Vancouver.

 

Solicitor for the respondent:  The Attorney General of British Columbia, Victoria.

 


Solicitor for the intervener the Attorney General of Canada:  The Attorney General of Canada, Ottawa.

 

Solicitor for the intervener the Attorney General for Ontario:  The Attorney General for Ontario, Toronto.

 

Solicitor for the intervener the Attorney General for Alberta:  The Attorney General for Alberta, Edmonton.

 

 



* See Erratum [2009] 2 S.C.R. iv.

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