R. v. Fletcher (R.J.), 2013 ABCA 74

• Judge: Côté, Conrad and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 30, 2013
• Citations: 2013 ABCA 74;(2013), 542 A.R. 367

R. v. Fletcher (R.J.) (2013), 542 A.R. 367; 566 W.A.C. 367 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. FE.098

Her Majesty the Queen (appellant) v. Robert James Fletcher (respondent)

(1203-0141-A; 2013 ABCA 74)

Indexed As: R. v. Fletcher (R.J.)

Alberta Court of Appeal

Côté, Conrad and Bielby, JJ.A.

February 26, 2013.

Summary:

The Crown appealed from the acquittal of the accused on charges that he kidnapped, raped and murdered a woman in December 1981. The sole basis for the appeal was the trial judge's refusal to admit, as similar fact evidence, the accused's guilty plea in 1984 to a charge of the attempted murder of a 16-year-old girl.

The Alberta Court of Appeal dismissed the appeal. The trial judge did not misunderstand or misapply the requirements for the admissibility of similar fact evidence.

Criminal Law - Topic 4681

Procedure - Judgments and reasons for judgment - General principles - The Crown appealed from the acquittal of the accused on charges that he kidnapped, raped and murdered a woman in 1981 - The basis for the appeal was the trial judge's refusal to admit certain evidence as similar fact evidence - The Crown argued that the trial judge misunderstood the test for admission of similar fact evidence in general because she did not specifically discuss the prejudice that might arise through the admission of that evidence at the conclusion of her decision - The Crown argued that the statement at the end of her voir dire ruling "I conclude that the probative value established here of the proposed evidence does not outweigh the prejudicial value" was merely conclusory - The Alberta Court of Appeal dismissed the appeal - The court stated, inter alia, that "A decision crafted and delivered while witnesses and counsel wait, in the context of an oral mid-trial voir dire ruling, should not be faulted for formatting issues like discussing an issue at one point but not also summarizing it in a formal concluding summary" - See paragraph 22.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The Crown appealed from the acquittal of the accused on charges that he kidnapped, raped and murdered a woman in 1981 - The basis for the appeal was the trial judge's refusal to admit, as similar fact evidence, the accused's guilty plea in 1984 to a charge of the attempted murder of a 16-year-old girl - Based on comments of the trial judge in her oral voir dire decision, the Crown argued that the trial judge committed an error of law by misunderstanding the requirements for the admission of similar fact evidence, by requiring it to conclusively identify the accused as the murderer, or otherwise - The Alberta Court of Appeal dismissed the appeal - The impugned passages had to be construed in light of the whole of the proceedings and the context of the decision to be made - When analyzed in context, it was apparent that the trial judge did not require the similar fact evidence to be conclusive on the issue of identity - See paragraphs 12 to 20.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The Crown appealed from the acquittal of the accused on charges that he kidnapped, raped and murdered a woman in 1981 - The basis for the appeal was the trial judge's refusal to admit certain evidence as similar fact evidence - The Alberta Court of Appeal dismissed the appeal - The court stated, inter alia, "[t]he Crown argued that the prejudicial effect of admitting the proposed similar fact evidence in this case could have been adequately offset by the trial judge simply warning herself against the risk of prohibited propensity reasoning. We do not accept that proposition. It implies that similar fact evidence, with any probative value, no matter how little, will always be admissible in judge alone trials, provided that the trial judge gives herself the appropriate warning about prejudice. That is not the law" - See paragraph 23.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The Crown appealed from the acquittal of the accused on charges that he kidnapped, raped and murdered a woman in 1981 - The basis for the appeal was the trial judge's refusal to admit, as similar fact evidence, the accused's guilty plea in 1984 to a charge of the attempted murder of a 16-year-old girl - The Crown argued that the trial judge erred in her assessment of the similarities and dissimilarities between the 1984 attempted murder and the offences charged here - The Alberta Court of Appeal dismissed the appeal - The court stated, inter alia, "[t]he Crown argued that the trial judge isolated the evidence of wounding pattern in her analysis, expressly comparing the pattern in the proposed similar fact evidence with the charged evidence. She did so because she expressly considered the wounding pattern as being 'the most significant similarity'. A particular discussion was warranted by the nature of this evidence, the comparison of which would not be as self-evident as some of the other proposed similarities such as the fact that both victims were females working alone. There is nothing in the judge's comments to show that she rejected the similar fact evidence because of the lack of similarities in the wounding patterns alone, or without reference to the balance of the proposed evidence. There is nothing in her evidence to support the argument that she required the wounding pattern evidence to conclusively identify [the accused] as the offender" - See paragraph 32.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The Crown appealed from the acquittal of the accused on charges that he kidnapped, raped and murdered a woman in 1981 - The basis for the appeal was the trial judge's refusal to admit, as similar fact evidence, the accused's guilty plea in 1984 to a charge of the attempted murder of a 16-year-old girl - The Crown argued, inter alia, that the trial judge erred in her assessment of the similarities and dissimilarities between the 1984 attempted murder and the offences charged here - The Alberta Court of Appeal dismissed the appeal - The court stated that "The Crown challenged [the trial judge's] analysis as 'overly-mathematical', contending that she considered the similarities and dissimilarities one-by-one, whereas she should have considered the similarities as a whole, each in the context of the other from which comparison she should have then been prepared to infer that the two crimes were strikingly similar. It did not suggest, however, how she could have weighed the similarities and dissimilarities without identifying each of them. The considerable dissimilarities she identified also had to be considered in determining whether the inference of identify sought by the Crown could be made. She concluded that those dissimilarities were so significant that they precluded the drawing of this inference; that decision was open to in her role as finder-of-fact in this trial" - See paragraphs 28 to 29.

Criminal Law - Topic 5214.1

Evidence and witnesses - Admissibility and relevancy - Similar acts - To prove identity of accused - [See all Criminal Law - Topic 5213 ].

Criminal Law - Topic 5214.9

Evidence and witnesses - Admissibility and relevance - Voir dire - General - [See Criminal Law - Topic 4681 ].

Evidence - Topic 1256

Relevant facts - Relevance and materiality - Similar acts - To prove criminal conduct - [See all Criminal Law - Topic 5213 ].

Evidence - Topic 1259

Relevant facts - Relevance and materiality - Similar acts - To prove identity - [See all Criminal Law - Topic 5213 ].

Cases Noticed:

R. v. Tessier (C.S.), [2002] 1 S.C.R. 144; 289 N.R. 203; 250 N.B.R.(2d) 203; 650 A.P.R. 203; 2002 SCC 6, refd to. [para. 7].

R. v. Ward, [1979] 2 S.C.R. 30; 25 N.R. 514; 14 A.R. 412; 44 C.C.C.(2d) 498, refd to. [para. 7].

R. v. Moreau (1986), 15 O.A.C. 81; 26 C.C.C.(3d) 359 (C.A.), refd to. [para. 7].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 7].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1; [1999] 5 W.W.R. 545, refd to. [para. 7].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 7].

R. v. G.B. et al. (No. 3), [1990] 2 S.C.R. 57; 111 N.R. 62; 86 Sask.R. 142, refd to. [para. 8].

R. v. Pickton (R.W.) (2009), 290 B.C.A.C. 1; 491 W.A.C. 1; 2009 BCCA 300, refd to. [para. 9].

R. v. Campbell (C.P.), [1998] A.R. Uned. 493; 1998 ABCA 326 (C.A.), refd to. [para. 20].

Counsel:

S.D. Hughson, Q.C., for the appellant;

D.J. Royer, for the respondent.

This appeal was heard on January 30, 2013, before Côté, Conrad and Bielby, JJ.A., of the Alberta Court of Appeal. The Court of Appeal delivered the following memorandum of judgment on February 26, 2013.