R. v. Chan, [2004] 3 S.C.R. 245, 2004 SCC 57

Chi Cheong (Raymond) Chan                                                                          Appellant

v.

Her Majesty The Queen                                                                               Respondent

Indexed as:  R. v. Chan

Neutral citation:  2004 SCC 57.

File No.:  29970.

2004:  May 19; 2004:  September 30.

Present:  Major, Bastarache, Binnie, Deschamps and Fish JJ.

on appeal from the court of appeal for british columbia

Criminal law — Evidence — Admissibility — Similar fact evidence —  Identification — Similar fact evidence of crimes committed by gang in three separate incidents put to jury for purpose of identifying particular gang member — Membership in gang varying — Whether evidence linking gang to one crime could be used against one member as similar fact evidence indicative of his participation in other crimes committed by same gang.

Criminal law — Charge to jury — Group similar fact evidence — Similar fact evidence of crimes committed by gang in three separate incidents put to jury for purpose of identifying particular gang member — Membership in gang varying — Whether trial judge erred in directing jury that evidence admitted with respect to each incident was admissible in proving guilt of accused with respect to others. 

The accused was convicted by a jury of several offences arising from three separate incidents of gang home invasions that occurred in the same area over a four‑week period.  The majority of the Court of Appeal upheld the convictions.  This appeal is a companion case to R. v. Perrier, [2004] 3 S.C.R. 228, 2004 SCC 56, and raises the same issue.

Held:  The appeal should be allowed and a new trial ordered.

The trial judge erred in directing the jury that they could consider the evidence from one incident as similar fact evidence with respect to identification, not of the gang but of the accused, for the other incidents.  The similarities between the incidents demonstrate that it was likely the same group that committed the offences but do not point to any individual trademark or characteristic that can serve to identify the accused. 

Cases Cited

Applied:  R. v. Perrier, [2004] 3 S.C.R. 228, 2004 SCC 56.

APPEAL from a judgment of the British Columbia Court of Appeal (2003), 187 B.C.A.C. 214, 307 W.A.C. 214, 178 C.C.C. (3d) 97, 14 C.R. (6th) 88, [2003] B.C.J. No. 2187 (QL), 2003 BCCA 508, upholding the accused’s convictions.  Appeal allowed.

Adrian F. Brooks, for the appellant.

Bruce Johnstone, for the respondent.

The judgment of the Court was delivered by

1                                   Major J.— This decision is a companion case to R. v. Perrier, [2004] 3 S.C.R. 228, 2004 SCC 56, with reasons released concurrently.  While the disposition is the same and for the same reasons, there are some facts particular to Mr. Chan set out below.

2                                   The evidence against him was:  the testimony of George Wang, an accomplice; stolen identification from one of the victims found by the police in a search of the appellant’s residence; as well as evidence of numerous cell telephone calls and pager messages between the appellant and Mr. Wang just before and after each incident.  In addition, the police intercepted a telephone call between Mr. Wang and the appellant that was later characterized by Ryan J.A. at the Court of Appeal as a conversation from which the jury might infer that the appellant and Mr. Wang were concerned that Michael Braun might be a “snitch” ((2003), 187 B.C.A.C. 214, 2003 BCCA 508, at para. 9).

3                                   The use of one incident as evidence of others is only applicable where the similarities are so striking as to preclude coincidence.  The similarities between the incidents demonstrate that it was likely the same group that committed the offences but do not point to any individual trademark or characteristic that can serve to identify the appellant.  As in Perrier, I agree with the reasons of Ryan J.A. that the trial judge erred in directing the jury that they could consider the evidence on one count as similar fact evidence on the others.

4                                   The appeal is allowed and a new trial ordered.

Appeal allowed and new trial ordered.

Solicitors for the appellant:  Brooks, Marshall & Reynolds, Victoria.

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