2017 MBPC 58, 2017 MBPC 58

Cite: 2017 MBPC 58 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) C. Vanderhooft, and ) M. Lavitt, - and – ) for the Crown ) Guido Paul Amsel, ) S. Zaman, and Accused ) J. Kostiuk, ) ) ) ) for the Accused Judgment delivered: December 11, 2017 ) TRACEY LORD, P.J. Ruling on Admissibility of Similar Fact Evidence Introduction [ 1 ] Mr.

Amsel is charged on one information with nineteen offences relating to four separate incidents, one that occurred in December 2013 and three that occurred in July 2015. [ 2 ] The Crown is seeking to have the evidence relating to each of the four incidents admitted as similar fact evidence and considered as evidence on all counts on the information. [ 3 ] It is important to note that at this stage the court is dealing with the issue of admissibility, which allows for the trier of fact to consider the evidence of each count on some or all of the other counts.

It is a permissive ruling and means that the trier of fact may consider the evidence in coming to a conclusion at the end of the trial. [ 4 ] When dealing with a multi count information, the evidence in relation to one count is presumptively inadmissible in relation to the other counts, unless it is admissible as similar fact evidence. [ 5 ] The onus is on the Crown to demonstrate on a balance of probabilities, in the context of the case, that the probative value of the evidence in question outweighs its potential prejudicial effect. [ 6 ] The cases dealing with similar fact evidence identify two categories of prejudice; reasoning prejudice and moral prejudice. [ 7 ] Moral prejudice is concerned with the stigma attached to prior bad acts or evidence that raises the prospect that the accused is simply a bad person, and that the verdict in the case will be based on that past rather than based on the evidence. [ 8 ] Reasoning prejudice has to do with the concern that the trier of fact will be distracted or confused by considering the other similar acts and be shifted away from their proper focus on the acts charged. [ 9 ] The danger of prejudice is of far less concern in a case where the trier of fact is a judge sitting alone, and when the similar fact evidence at issue is the otherwise admitted evidence in a multi count information. [ 10 ] The probative value of the proposed evidence is dependent on the nexus established between the evidence of similar acts and the other offences that the evidence is being offered to prove. [ 11 ] The degree of similarity required to permit admission of the similar fact evidence is dependent on the issues in case, and the purpose for which it is being tendered. [ 12 ] The probative value of the evidence increases as the similarity between the acts increases, and the more unique or distinct the

similarities are, the less likely they are to be coincidental. [13] In this case the Crown submits that the evidence of all four incidents bear striking similarities to one another and are relevant toestablishing the actus reus or modus operandi of the perpetrator as well as identity. [14] When the evidence of the similar acts is being tendered to prove the identity of the perpetrator, a high degree of similaritybetween the acts is required to establish that the likelihood of coincidence is objectively improbable. [15] Striking similarity establishing a trademark or signature is not necessary for admission.

What is required is the presence ofsignificant similarities, that in combination, may, owing to their cumulative effect be probative of identification and address the objectiveimprobability of coincidence that more than one person committed the acts. [16] The cases submitted by the defence illustrate the importance of also closely considering any differences between the acts inquestion.

Despite numerous similarities between events, there may be a difference or differences that are of such importance or socompelling in the circumstances of the case, that it will tip the balance in favour of exclusion even when similarities exist. [17] R. v. Arp, (SCC), [1998] 3 S.C.R. 339 is the leading case specifically dealing with similar fact evidence as itrelates to identity and sets out the process by which a trial judge should examine the purported similar acts to determine thresholdadmissibility. [18] At paragraph 45 the court said: . . .

A principled approach to the admission of similar fact evidence will in all cases rest on the finding that the accused’s involvement inthe alleged similar acts or counts is unlikely to be the product of coincidence.

This conclusion ensures that the evidence has sufficientprobative force to be admitted, and will involve different considerations in different contexts. [19] The admissibility inquiry is a two- step process which first addresses the apparent similarities between the various acts at issueand then secondly examines the presence of evidence linking the accused with the acts. [20] The linkage that is required at the second stage is a determination that some evidence exists upon which the trier of fact canmaking a finding that the similar acts were those of the accused. [21] Generally speaking, the similarity inquiry is based on an evaluation of the acts themselves without reference to evidence whichlinks the accused to the acts, but there are circumstances where overlap will occur. [22] The R. v.

MacCormack, 2009 ONCA 72 and R. v. Manitopyes, 2016 SKCA 61 decisions set out circumstances in whichoverlap between the similarity inquiry and the linkage inquiry is not only appropriate but unavoidable. [23] At paragraph 81 of the MacCormack decision the court says: . . . Sometimes, it is difficult to draw a bright line between similarities in the manner in which

an act is committed and an accused’sinvolvement in the act. To apply a test of whether the objective improbability that an accused’s involvement in the alleged acts is theproduct of coincidence without regard to the evidence connecting the accused and the acts seems unduly antiseptic. [24] In R. v.

Handy, [2002] S.C.R. 908 the court sets out a non-exhaustive list of factors to be considered in the similarity inquirywhich generally speaking address such issues as proximity in time of the various acts, similarity in detail or circumstances of the variousacts, and distinct unifying features. [25] In this case the Crown submits that there are many similarities between the four incidents that favour their admissibility assimilar fact, and points out that the examination is not an all or nothing proposition.

Similarities may exist between some but not allcounts. [26] The defence’s submission is that while there may be some similarities between the acts there are also many dissimilaritiesbetween the incidents that are of importance, in particular as between the 2013 incident and the three 2015 incidents. [27] I am going to begin the analysis by dealing with the three 2015 incidents. [28] There are a number of similarities among the July 2015 incidents that occurred at 252 River Avenue, 597 Washington Avenueand 280 Stradbrook Avenue. [29] I have grouped the similarities into four areas; manner of delivery, appearance of the packages, content of the packages and thetargeted addressees.

Manner of delivery [30] There is evidence that all three packages were sent by Canada Post regular mail. [31] There is evidence that all three packages were sent using numerous stamps, as opposed to being sent via a Canada Post outletwith accompanying payment and bar code label. [32] There is evidence that all three packages were received at the three addresses by at the latest Friday July 3, 2015. There isevidence that two of the three packages were received that week; one on the Tuesday and one on the Thursday. Appearance of the packages

[ 33 ] There is evidence that all three packages were addressed in hand printed format with very similar lettering. [ 34 ] In the case of two of the three packages, a similar bubble wrap envelope was used.

Content of the packages [ 35 ] There is evidence that all three packages contained an improvised explosive device designed to explode when manipulated upon opening by the recipient. [ 36 ] There is evidence that all three explosive devices were designed to explode in a manner that spread shrapnel fragments at high velocity. [ 37 ] The recovered content of all three devices contained traces of the same explosive substance Triacetone Triperoxide or TATP, which is an unstable high power explosive substance that is easily made from readily available substances. [ 38 ] There is evidence that all three packages contained button batteries of the same brand and number Vinnic L1154. [ 39 ] There is evidence that all three packages contained a message.

In the case of the device sent to 252 River Avenue a hand written note containing instructions for the use of the hand held recording device was included. Following the instructions on the note engaged the explosion. [ 40 ] The other two devices contained messages imprinted or stamped into metal contained within the devices. So while there is a general similarity on this issue there is also a dissimilarity in the purpose of the messages.

Targeted recipients [ 41 ] There is evidence that all three of the devices were sent to individuals involved in legal proceedings with the accused; his former wife, her legal counsel and his own former counsel. [ 42 ] While this would ordinarily be seen as linkage evidence, in that it is indicative of a link between the accused and the intended victims, it is also in my view a unifying feature in that it is also indicative of a link between the victims, which is a similarity between the incidents. Linkage evidence [ 43 ] As already indicated Mr.

Amsel is linked to the three bombing incidents by virtue of his relationship with the intended targets. [ 44 ] He is also linked to the incident at 252 River Avenue because there is evidence that his DNA has been found on the fabric pouch in which the device was delivered. [ 45 ] He is linked to the incident at 597 Washington Avenue by the evidence of his former wife and two employees who said that they recognized the hand writing on the package to be that of Mr. Amsel. [ 46 ] He is linked to all three incidents by the qualified opinion of the FBI handwriting expert Mr.

Belcastro that the handwriting associated with all three packages may have been written by the same person or persons. Mr.

Belcastro also explained why his opinion was a qualified one, and that while his opinion could not be termed as a positive match, his opinion would lean in the direction of the writer or writers being the same as opposed to not being the same. [ 47 ] Based on the nature and number of similarities in the evidence and their cumulative effect I am satisfied on a balance of probabilities that the three devices sent to 252 River, 597 Washington and 280 Stradbrook were sent by the same person. [ 48 ] I am also satisfied that there is some evidence linking Mr.

Amsel to each of the three explosions. [ 49 ] In Arp , supra, at paragraph 53 the court noted that: 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 is which those offences were committed. [ 50 ] With respect to the incidents that occurred at 252 River Avenue, 597 Washington Avenue and 280 Stradbrook Avenue, I am satisfied on the evidence that the standard of striking similarity has been met and that the similarities are sufficient to establish that the alleged similar acts were committed by the same person.

I am satisfied therefore that the evidence on the counts relating to the three explosion incidents in July 2015 is admissible to prove the commission of the other counts. [ 51 ] The accumulation of significant similarities among the several incidents establishes the objective improbability of coincidence. [ 52 ] Any differences or dissimilarities between the acts are not so significant that they affect the probative value of the similarities. [ 53 ] Dealing next with the incident from December 2013 at 127 Nicholas Street in Narol, Manitoba, the residence of Ms.

Amsel. [ 54 ] There are a number of differences between the 2013 incident at Ms. Amsel’s residence when compared with the incidents that occurred in Winnipeg in 2015, and there are fewer similarities than those that exist among the 2015 incidents. [ 55 ] However, the similarities that do exist in the context of this case are significant.

[ 56 ] As in the case of the three Winnipeg explosions there is evidence that the explosion at 127 Nicholas Street was caused by a high power explosive and was designed when detonated to spread shrapnel with high velocity. [ 57 ] This device was located at Ms. Amsel’s residence. Ms. Amsel was also the target of the device delivered to 597 Washington Avenue in July 2015. This is a further significant similarity. [ 58 ] As in 2015, there was litigation ongoing between the Amsels in the time frame immediate to the explosion in 2013.

While this fact can also be categorized as linkage evidence it also is properly identified as a similarity, because it addresses the similar circumstances of the same victim at the time of both incidents. [ 59 ] The evidence linking Mr. Amsel to this incident also includes the evidence that his DNA was found on a piece of string closely associated with the location of the explosion. [ 60 ] Three pieces of string were located at or near the blast site at 127 Nicholas Street.

Two were located in or near the blast crater and one was located attached to the licence plate holder of a vehicle parked close to the blast site. There is evidence that indicates that these pieces of string are associated to the explosion, in that they were not present prior to it occurring. [ 61 ] There is also evidence linking Mr. Amsel to the incident at 127 Nicholas Street in the evidence of Mr. Ehrmantraut. [ 62 ] In a conversation with the accused that occurred after the explosion at 127 Nicholas Street, Mr. Ermentraut asked the accused if he was responsible for the explosion at Iris Amsel’s residence. Mr.

Amsel did not respond to the question. In the same conversation Mr.

Ehrmentraut reported that the accused also posed a question, the gist of which was, “if the first time misses do you think the second time would miss?” [ 63 ] This evidence also links him by implication to the explosion at 597 Washington Avenue which had yet to occur. [ 64 ] I am satisfied in the context of the case that there are sufficient similarities between the explosion in 2013 at 127 Nicholas Street and the explosions in 2015 that the evidence of each is admissible respecting the counts relating to the others. [ 65 ] I am satisfied by the evidence on a balance of probabilities of the objective improbability of these four occurrences being coincidental. [ 66 ] My ruling is that the evidence of each incident may be considered in relation to all of the incidents contained in the information. “Original signed by” TRACEY LORD, P.J.