R. v. Arp

R. v. Arp
Collection
Supreme Court Judgments
Date
1998-11-26
Report
[1998] 3 SCR 339
Case number
26100
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
British Columbia
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 26100
Decision Content
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 fo