R. v. Chan (C.C.(R.)) et al., (2004) 325 N.R. 203 (SCC)

• Judge: Major, Bastarache, Binnie, Deschamps and Fish, JJ.
• Court: Supreme Court (Canada)
• Case Date: September 30, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 325 N.R. 203 (SCC);2004 SCC 57;[2005] 4 WWR 15;22 CR (6th) 229;188 CCC (3d) 14;325 NR 203;35 BCLR (4th) 15;[2004] 3 SCR 245;203 BCAC 1;243 DLR (4th) 314

R. v. Chan (C.C.(R.)) (2004), 325 N.R. 203 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2004] N.R. TBEd. SE.028

Chi Cheong (Raymond) Chan (appellant) v. Her Majesty The Queen (respondent)

(29970; 2004 SCC 57; 2004 CSC 57)

Indexed As: R. v. Chan (C.C.(R.)) et al.

Supreme Court of Canada

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

September 30, 2004.

Summary:

The two accused (Chan and Perrier) were convicted of a number of counts of breaking and entering, robbery, unlawful confinement and possession of stolen property. The charges arose out of three separate home in­vasions. Both accused appealed their con­victions.

The British Columbia Court of Appeal, Ryan, J.A., dissenting, in a judgment report­ed (2003), 187 B.C.A.C. 214; 307 W.A.C. 214, dismissed the appeals. Chan appealed.

The Supreme Court of Canada allowed the appeal and ordered a new trial.

Criminal Law - Topic 4352.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding similar fact evidence - A gang of men committed three home invasions on three separate days over a month - Perrier was charged respecting the first two incidents - Prior to trial he was convicted of robbery and break and enter respecting the last incident - Chan was charged respecting all three incidents - Identity was in issue - The Crown's theory was that both were in­volved in all incidents - The British Co­lumbia Court of Appeal upheld the jury charge on similar fact evidence - It cau­tioned them to identify the perpetrators - It did not instruct them per se that if they concluded that Perrier or Chan committed one crime, they could infer on that finding alone that they committed the others - The Supreme Court of Canada, in allowing Chan's appeal and ordering a new trial, stated that "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. ... the trial judge erred in directing the jury that they could consider the evidence on one count as sim­ilar fact evidence on the others." - See paragraph 3.

Cases Noticed:

R. v. Perrier (J.L.) (2004), 325 N.R. 206; 203 B.C.A.C. 4; 332 W.A.C. 4 (S.C.C.), folld. [para. 1].

Counsel:

Adrian F. Brooks, for the appellant;

Bruce Johnstone, for the respondent.

Solicitors of Record:

Brooks, Marshall & Reynolds, Victoria, B.C., for the appellant;

Attorney General of British Columbia, Vancouver, B.C., for the respondent.

This appeal was heard on May 19, 2004, before Major, Bastarache, Binnie, Des­champs and Fish, JJ., of the Supreme Court of Canada.

On September 30, 2004, the judgment of the Supreme Court of Canada was delivered in both official languages by Major, J.