Her Majesty the Queen - v. -, 2016 SKPC 036

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 036 Date: March 8, 2016 Information: 39123296, 39123243 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lyle W. Roode Appearing: Mr. John Syrnick For the Crown Mr. Gordon Kirkby For the Accused DECISION ON VOIR DIRE S. D. SCHIEFNER, J NATURE OF THE APPLICATION [ 1 ] This is an application by the Crown for an order permitting it to call, and asking this Court to accept, similar fact evidence at the trial of the accused, Mr. Lyle W.

Roode. [ 2 ] The accused stands charged that, on or about February 27, 2015, at or near the City of Prince Albert, in the Province of Saskatchewan, that he did knowingly utter a threat to Ms. Anne Philp, the complainant. Concomitant therewith, the accused also stands

charged that he breached the terms of a probation Order by attending within one hundred (100) metres of Ms. Philp’s address and, in so doing, failed to keep the peace and be of good behavior. [ 3 ] At issue are two (2) documents; the first being a handwritten message left on the window of a house within which Ms. Philp resided in August of 2014; and the second being a handwritten message on a piece of paper left on Ms. Philp’s car. The second message is the means by which the Crown alleges the accused threatened Ms. Philp in the matters currently before the Court.

The Crown seeks admission of the first message as a similar act in the trial of the accused for purpose of establishing his involvement with the second message. [ 4 ] A pre-trial voir dire was conducted on February 11, 2016, at which time evidence and argument were heard on the Crown’s application. Decision on the Crown’s application was reserved. Both the Crown and the accused seek a determination on this issue prior to trial.

EVIDENCE ON THE VOIR DIRE [ 5 ] At the outset of the voir dire , the Crown tendered Exhibit P-2; being a print of a photograph taken by Constable Anderson, a member of the Prince Albert Police Service. The photograph was taken by Constable Anderson on or about August 21, 2014. The photograph shows a handwritten message left on glass. Both Ms. Philp and Constable Anderson testified that the message was written on the window of the backdoor of the building within which Ms. Philp resided. The message was written on the glass in black marker.

The message was as follows: Wer Watching you sexy You Wan to fuck Hard We can Get you (indecipherable) yoy self [ 6 ] Ms. Philp testified that she and the accused had previously been married. However, at the time of the Crown’s application, Ms. Philp and the accused had been separated for approximately 2 ½ years. [ 7 ] Ms. Philp testified that on August 21, 2014, she returned home and found the message contained in P-2. Ms. Philp testified that she was terrified by the note and called the police. Constable Anderson testified that he was dispatched to respond to this complaint. Constable Anderson attended to Ms.

Philp’s residence, personally observed the handwritten message on the window of the back door, and took the photograph now reproduced in Exhibit P-2. [ 8 ] Constable Anderson advised Ms. Philp to purchase a motion-activated camera. Ms. Philp testified that her landlord purchased such a camera and placed it where it would photograph the area of the door upon which the message shown in P-2 was discovered. While the camera detected motion and took a number of pictures, the location where the camera was originally pointed was too dark and the photographs contain little useful information.

Soon thereafter the camera was re-oriented to photograph the driveway leading to the rear of the building. The camera detected motion at this orientation and a number of pictures were taken of an individual walking up and down the driveway next to Ms. Philp’s residence. The individual in the photograph was identified to be the accused by both Ms. Philp and Constable Anderson. Twenty-two (22) photographs were produced by the motion activated camera taken between August 22, 2014, and August 25, 2014. All were tendered by the Crown.

The defense objected to the Court accepting these photographs as evidence on the voir dire as the basis of this evidence was not relevant to the determination to be made by the Court on the Crown’s application. The photographs were identified as Exhibit P-3. The decision on the admissibility of this evidence was reserved. [ 9 ] While evidence of only one (1) message was tendered by the Crown, Ms. Philp testified that during the period of August 21, 2014, to August 25, 2014, three (3) separate massages were written on the window of her back door. Ms.

Philp testified that all of these were similar and caused her to fear for her safety. [ 10 ] Ms. Philp testified that in February of 2015, she observed a piece of paper on the front window of her car. The piece of paper was accepted as evidence on the voir dire and marked as Exhibit P-4. Ms. Philp testified that, upon seeing the note, she was suspicious that it was similar to the note(

s) she had received the preceding year. As a consequence, she called the police. Constable Ratt, a member

of the Prince Albert Police Service, was dispatched to investigate this incident. Ms. Philp removed the piece of paper from the windowof her car and provided it to Constable Ratt. P-4 contained the following message written in pen: I’m out TS Bros Gona fuck up you and Family you want stop You (indecipherable) dead Fuck Watching Iou dead you [11] Constable Ratt testified that he attended to Ms. Philp’s residence on February 27, 2015, at approximately 15:35. Constable Ratttestified that Ms. Philp gave Exhibit P-4 to him, which he retained for his investigation. Soon after leaving Ms.

Philp’s residence,Constable Ratt observed the accused walking on the sidewalk approximately one (1) block from Ms. Philp’s residence. Constable Rattapproached the accused and, after a brief exchange, arrested him for breach of a condition of his probation (being within 100 metres ofMs. Philip’s residence). Constable Ratt conducted a search of the accused, incidental to arrest at the scene and a pen was found on hisperson. At the police station a further search was conducted and Constable Ratt found that he had five (5) pieces of paper in hispossession.

Constable Ratt testified as to his belief that this paper was of a kind similar to the note that was left on the windshield of Ms.Philp’s car. The defense objected to this evidence, together with the pen and the sheets of paper, all of which the Crown sought to tenderas evidence on the voir dire. The defense objection was essentially the same as its previous objection; namely, that none of this evidenceis relevant to the determination which the Court is required to make on the voir dire. The pen was marked as Exhibit P-5 and the sheetsof paper were marked as Exhibit P-6; both for identification only.

The decision on admissibility of this evidence was reserved. [12] Constable Ratt testified that he had observed and photographed footprints in the snow near Ms. Philp’s car when he was at thescene. Constable Ratt also testified that, while booking the accused, he concluded that the footwear being worn by the accused wassimilar to the impressions left at the scene. As a consequence, Constable Ratt took photographs of the footwear being worn by theaccused on February 27, 2015. Constable Ratt produced fifteen (15) photographs depicting Ms.

Philp’s car, the impression of footprintsnear her car, and of the accused’s footwear. The defense also objected to this line of evidence, together with these additionalphotographs. The photographs were marked as Exhibit P-7 for identification only and the Court reserved its decision on the admissibilityof this evidence on the voir dire.

CROWN’S POSITION [13] As indicated, the Crown seeks to have Exhibit P-2 (a photograph of a handwritten message left on a window in August of 2014)accepted as evidence at trial with respect to allegations that the accused knowingly uttered a threat on or about February 27, 2015, and, inso doing, breached a Probation Order to which he is bound. The February 27, 2015, incident involved a handwritten message left on anote placed on a windshield of a car belonging to Ms. Philp.

The Crown seeks the admission of P-2 for the purpose of identification ofthe accused as the person who authored and/or placed P-4 on the windshield of Ms. Philp’s car and thus committed the crimes charged. [14] The Crown argues that two (2) messages are sufficiently similar and that they qualify as similar fact evidence. The Crown notesthat both messages contain threatening words, bear similarities in the unusual spelling, phrasing, writing used, and involved or weredirected to Ms. Philp. In addition, the Crown asks the Court to consider the circumstances under which both messages were found.

Inthis regard, the Crown seeks to rely on evidence that the accused was observed near Ms. Philp’s residence on both occasions and on thesecond occasion had in his possession a pen and the kind of paper used to make the second note. Simply put, the Crown argues that,under these circumstances, the potential for coincidence is very low. The Crown argues that the probative value of the evidence is highand outweighs any prejudicial effect associated with the admission of Exhibit P-2 at trial.

In support of its application, the Crown asksthat all of the evidence tendered during the voir dire be accepted as evidence in the voir dire. [15] In support of its application, the Crown relies upon R v Brandon Michael McCormick, (SK PC) and R vDouglas Wayne Scott, (SK QB).

POSITION OF THE DEFENCE [16] Firstly, the accused takes the position that the only evidence that is relevant on the voir dire are Exhibits P-2 and P-4 and notevidence as to the accused’s involvement or potential involvement with respect to either of the two (2) messages. The defense takes theposition that all other evidence, including P-3 (photos taken by the motion activated camera in August of 2014, near Ms. Philp’sresidence), P-5 (a pen found in the possession of the accused), P-6 (sheets of paper found in possession of the accused) and P-7 (photos ofMs. Philp’s car, of impressions of footprints near Ms.

Philp’s car and of the footwear worn by the accused on or about February 27,2016) is irrelevant to the question of whether or not P-2 and P-4 are sufficiently similar that P-2 can be accepted at trial as similar factevidence. On this point, the accused relies on the decisions of the Supreme Court of Canada in R v Arp, [1998] 3 SCR 339, (SCC) [Arp]. [17] Secondly, the accused argues that, when identity is at issue, the test for the admission of similar fact evidence is that theevidence must be strikingly similar; so distinctive and so unique that the likelihood of coincidence is objectively improbable.

In otherwords, to be used for the purpose of establishing the identity of an accused, the evidence sought to be adduced must be so distinctive andunique that it essentially establishes a signature or trademark, thereby excluding the possibility that anyone else could have left themessage. [18] In opposing the Crown’s application, the accused relies upon R v Krishna Sarma Vittala, 2010 SKQB 205 and R v CoreyMatthews, 2013 SKQB 51. CONCLUSIONS a. Review of the Law Respecting Acceptance of Similar Fact Evidence [19] As a general rule, similar fact evidence is presumptively inadmissible in criminal proceedings.

However, there are exceptions tothis rule. As is often the case in the practice of law, the basic rule is simple; the difficulty lies in the application of the exceptions in aparticular fact situation. [20] Generally speaking, evidence is not admissible if its prejudicial effect is anticipated to outweigh its probative value. Forexample, evidence of similar crimes or discreditable conduct of an accused in the past is not admissible if the purpose of that evidence isto demonstrate the accused’s propensity for a particular crime or general bad character.

Such evidence is inadmissible because characterevidence or evidence intended to show propensity to commit a particular crime has low probative value and is highly prejudicial to anaccused. See R v Morris, (SCC), [1983] 2 SCR 190. As a result, such evidence is presumptively inadmissible. See R vHandy, 2002 SCC 56, [2002] 2 SCR 908 [Handy].

However, similar fact evidence may be admissible under certain circumstances;circumstances where a court is satisfied that the potential probative value of the evidence outweighs its prejudicial effect. [21] For example, similar fact evidence is admissible, including evidence of prior criminal acts, if the acts in question are sufficientlyunique and/or distinctive enough that it is unlikely that there is a coincidence in their occurrence.

For example, if the subject acts are sodistinctive and unique or if there are sufficient similarities between the subject acts that the court is satisfied, on the balance ofprobabilities, that they were likely committed by the same person, then the evidence may be admitted. The requisite degree of similaritynecessary to admit similar fact evidence depends on the circumstances. For example, a single unique similarity, something akin to atrademark or signature, linking the subject acts may be sufficient.

In other cases, where there is no particular hallmark or uniquesignature, sufficiency may be found in a number of significant similarities provided the cumulative effect is to demonstrate that it isobjectively improbable that the subject acts were the products of coincidence. [22] The purpose for which the Crown seeks to introduce evidence of similar acts is also an important consideration. For example, ifthe purpose of the evidence is to establish the identity of the accused, a high degree of similarity is required. See R v Arp.

On the otherhand, an arguably less stringent test is applied if the purpose of the similar fact evidence is not to prove the identity of the accused. See Rv Handy. [23] In the present case, the Crown seeks to use its desired similar fact evidence to establish the identity of the accused. In Arp, the

Supreme Court of Canada set forth a structured, analytical approach for courts to follow in these circumstances. A review of this decision indicates that a two (2) stage approach is to be used. The first stage is to determine whether or not it is likely that the same person commit the subject acts. In the present application, the first stage will be to determine whether it is likely that the same person left the two (2) messages shown in Exhibits P-2 and P-4. The second stage is to determine whether or not there is some linkage between the accused and the similar act; in this case Exhibit P-2. b.

What evidence is admissible on the voir dire ? [ 24 ] Having reviewed the Court’s decision in Arp , I am satisfied that at the first stage (i.e.: in determining whether or not it is likely that the same person left both messages), the focus of my inquiry must be on the degree of similarity in the two (2) messages, including such things as the manner in which they came into existence, the messages contained therein (implied or stated), where they were found, and to whom they were directed.

At this stage of the inquiry, and because the purpose for which the evidence is tendered is to establish identity, I must focus on the messages themselves and not on the accused’s potential involvement in those messages to support or influence my conclusions regarding similarity. As noted by the Supreme Court of Canada in Arp , at this stage in the inquiry, evidence that is independent of the similarities between the messages cannot be used to assist in the inquiry as to whether or not the same person is likely to have left both messages.

For example, I may not bolster my conclusion as to the degree of similarity between the two (2) messages by relying on evidence that the accused was in the vicinity when each of the notes were found or that he had the means and opportunity to leave both messages.

Simply put, at the first stage of the Arp analysis, the focus is entirely on the similarities and/or distinctiveness of the acts and not the accused’s potential involvement in those acts. [ 25 ] With respect to the second stage, the inquiry shifts to linkage evidence but only with respect to the similar act; the evidence the Crown seeks to admit in this case, Exhibit P-2. A link between the accused and the similar act is required because, if there is no link between P-2 and the accused, similarities in these two (2) messages cannot be used as evidence of a link between P-4 and the accused.

However, in examining this linkage evidence, it is not necessary that I be satisfied that the accused is probably the author/perpetrator of P-2, provided there is some evidence upon which a reasonable trier of fact can make a proper finding that the accused committed that similar act. See R v Jesse , 2012 SCC 21 , [2012] 1 SCR 716. [ 26 ] In light of the structure, analytical approach defined in Arp , I find that Exhibits P-5, P-6 and P-7 are inadmissible on the voir dire .

This evidence is not relevant to the first stage of the inquiry, namely, the degree of similarities between P-2 and P-4, nor is it relevant to the second stage of the inquiry, namely, whether or not there is evidence linking the accused to P-2. I make no determination as to the admissibility of this evidence at trial. [ 27 ] With respect to P-3, I am satisfied that this document is admissible with respect to the second stage of the inquiry. As such, these photographs are accepted as full exhibits on this voir dire .

However, I confine my use of this evidence to the question of whether or not there is a nexus between the accused and the similar fact, the second stage in the Arp test. c. Is it likely that the same person left both messages? [ 28 ] As indicated, a high degree of similarity is required to admit evidence of similar acts if the purpose is to establish the identity of the accused. In examining Exhibits P-2 and P-4, I find there are similarities, including a menacing tone, the unusual writing style, the use of cryptic nomenclature, and the proximity of both messages to Ms.

Philp, as well as the fear that both messages caused her. On the other hand, it is not apparent that there is a striking similarity, a unique trademark or anything akin to a signature linking both documents to the same person. To the contrary, there are a number of differences in the messages; P-2 was written on glass, while P-4 was written on paper; P-2 was found on the back door of Ms. Philp’s residence, while P-4 was found on her vehicle; P-2 is written in the plural (i.e. “we”), while P-4 is written in the singular (i.e. “I’m out”).

In my opinion, while I recognize the impact that both messages had on the complainant, when examined objectively, there are no striking similarities in the two (2) messages. There is no hallmark or trademark linking the two (2) messages to one person, and the cumulative effect of the similarities that do exist are insufficient to satisfy me that one person is likely responsible for both messages. While it is possible that both messages were the product of the same person, there are insufficient similarities in the two (2) documents to be satisfied, on the balance of probabilities, that such is the case.

[ 29 ] For the foregoing reasons, the Crown’s application to admit Exhibit P-2 at the trial of the accused under the similar fact evidence rule is denied. d. Is there some evidence linking the accused to the two (2) messages? [ 30 ] In light of my determination at the first stage of the Arp inquiry, I need not make a determination at the second stage. e. Is any of the evidence admissible at trial? [ 31 ] For the foregoing reasons, the Crown’s application is dismissed. Exhibit P-2 and P-3 are inadmissible at trial.

As noted, I make no determination on the admissibility of Exhibits P-4, P-5 and P-6 at trial. [ 32 ] Dated this 8 th day of March, A.D. 2016, at the City of Prince Albert, in the Province of Saskatchewan. ___________________________ S. D. Schiefner, J