R. v. Graham (D.),

• Jurisdiction: Ontario
• Judge: Weiler, Watt and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: 2015 ONCA 113,(2015), 330 O.A.C. 394 (CA)
• Date: 21 January 2015

R. v. Graham (D.) (2015), 330 O.A.C. 394 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. FE.010

Her Majesty the Queen (respondent) v. Dale Graham (appellant)

(C50624; 2015 ONCA 113)

Indexed As: R. v. Graham (D.)

Ontario Court of Appeal

Weiler, Watt and Epstein, JJ.A.

February 18, 2015.

Summary:

The accused appealed his conviction on child pornography charges, arguing that the trial judge erred in the manner in which similar fact evidence was used.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admissibility - Evidence of disposition or propensity of accused - [See both Criminal Law - Topic 5213 ].

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The Ontario Court of Appeal stated that "Evidence as to an accused's general disposition or bad character is presumptively inadmissible ... However, the prohibition against admitting evidence of previous discreditable acts (or 'similar fact evidence') is not absolute ... 'an issue may arise in the trial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse'. A trial judge may therefore admit similar fact evidence if she is satisfied on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception ..." - See paragraphs 23 and 24.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The accused was convicted of a number of counts relating to child pornography - He appealed, arguing that the trial judge erred in the manner in which similar fact evidence was used - The Ontario Court of Appeal held that the extrinsic evidence concerning the neighbourhood children and a hidden webcam was properly admissible as similar fact evidence - Its probative value outweighed its prejudicial effect - Further, some of the count-to-count evidence employed by the trial judge was admissible, not simply as similar fact evidence, but as circumstantial evidence of identity - See paragraphs 19 to 34.

Criminal Law - Topic 5214.1

Evidence and witnesses - Admissibility and relevancy - Similar acts - To prove identity of accused - The Ontario Court of Appeal stated that "Where similar fact evidence is introduced to prove identity, there are special considerations. A trial judge must first assess the degree of similarity between the acts in question to determine whether it is likely that the same person committed the alleged similar acts. Once it is determined on a balance of probabilities that the same person committed the alleged similar acts, the similar fact evidence may be admitted to prove that the accused committed the offence or offences in question ..." - See paragraph 25.

Criminal Law - Topic 5214.1

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

Evidence - Topic 1257

Relevant facts - Relevance and materiality - Similar acts - To prove course of conduct - [See both Criminal Law - Topic 5213 ].

Evidence - Topic 1259

Relevant facts - Relevance and materiality - Similar acts - To prove identity - [See second Criminal Law - Topic 5213 and first Criminal Law - Topic 5214.1 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, 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. 23].

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, refd to. [para. 25].

R. v. J.W. (2013), 302 O.A.C. 205; 2013 ONCA 89, refd to. [para. 28].

Counsel:

Dale Graham, acting in person;

Delmar Doucette, appearing as amicus curiae;

Alison Wheeler, for the respondent.

This appeal was heard on January 21, 2015, before Weiler, Watt and Epstein, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Weiler, J.A., on February 18, 2015.