R. v. Perrier (J.L.), 243 DLR (4th) 301

• Judge: Major, Bastarache, Binnie, Deschamps and Fish, JJ.
• Court: Supreme Court (Canada)
• Case Date: September 30, 2004
• Jurisdiction: Canada (Federal)
• Citations: 243 DLR (4th) 301;[2004] 3 SCR 228;2004 SCC 56;188 CCC (3d) 1;325 NR 206;[2005] 4 WWR 1;(2004), 203 B.C.A.C. 4 (SCC);35 BCLR (4th) 1;203 BCAC 4;[2004] SCJ No 54 (QL);22 CR (6th) 209

R. v. Perrier (J.L.) (2004), 203 B.C.A.C. 4 (SCC);

    332 W.A.C. 4

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] B.C.A.C. TBEd. SE.057

Justin Lance Perrier (appellant) v. Her Majesty The Queen (respondent)

(30002; 2004 SCC 56; 2004 CSC 56)

Indexed As: R. v. Perrier (J.L.)

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. Perrier 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 over a four week period - The method of operation adopted by the gang was distinctive - Perrier was alleged to be a gang member involved in all three robberies - Identity was the criti­cal issue - The British Col­umbia Court of Appeal upheld a jury charge on similar fact evidence to the effect that evidence linking the gang to one offence could be used against Perrier, a member of the gang, as similar fact evidence indicative of his participation in the other offences com­mitted by the gang - The Supreme Court of Canada, in allowing Perrier'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." - Evi­dence linking Perrier to one robbery could not be used to infer partici­pation in other crimes, likely committed by the same gang, where membership in the gang was fluid, not fixed - See paragraphs 4, 16 to 45.

Criminal Law - Topic 5214.1

Evidence and witnesses - Admissibility and relevancy - Similar acts - To prove identity of accused - The Supreme Court of Canada stated that "the rationale for the admission and use of similar fact evidence where identity is in issue is the improbability that two persons would display the same con­figuration of matching characteristics in committing a crime. Thus a jury is not being asked to infer that the accused is the type of person who would commit the of­fence but to conclude that he is exactly the person who did commit the offence. This inference is made possible only if the high degree of similarity between the acts ren­ders the likelihood of coincidence objec­tively improbable. ... we must be cautious when using propensity evidence in the con­text of identity." - See paragraphs 19, 20.

Criminal Law - Topic 5214.1

Evidence and witnesses - Admissibility and relevancy - Similar acts - To prove identity of accused - The Supreme Court of Canada stated that "similar fact evidence of group activities should be admissible in order to identify a group or gang responsible for a particular crime. Where, as here, you have several crimes committed with a unique modus operandi, and the objective improb­ability of coincidence is high, the trier of fact should be permitted to draw an infer­ence that the same gang committed the acts. ... Where evidence of similar offences committed by a gang is being introduced not just to identify the gang itself but to identify a particular member, a sufficient connection between the individual and the crimes of the group must be established. ... Group similar fact evidence can be used to identify groups, but not to assign liability to particular members. Identifying the group will facilitate prosecution where it can be shown that membership in the group was constant and the individual members can be identified. Identifying the group will not likely facilitate prosecution where membership in the group was not constant, unless the role played by a par­ticular accused was sufficiently distinct that he can be identified as having been in­volved in all the offences." - See para­graphs 31 to 33.

Cases Noticed:

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. 17].

R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161; 2002 SCC 58, refd to. [para. 17].

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. 17].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 322 A.P.R. 1, refd to. [para. 17].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 17].

R. v. Sweitzer, [1982] 1 S.C.R. 949; 42 N.R. 550; 37 A.R. 294, refd to. [para. 23].

R. v. Brown, [1996] E.W.J. No. 2403 (C.A.), refd to. [para. 27].

R. v. Lee, [1996] E.W.C.A. Crim. 59, refd to. [para. 27].

Counsel:

Peter Leask, Q.C., and Jeremy Gellis, for the appellant;

Bruce Johnstone, for the respondent.

Solicitors of Record:

Leask Bahen, Vancouver, 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.