R. v. Arp (B.) (1998), 232 N.R. 317 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [1998] N.R. TBEd. NO.018
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 (intervenors)
(26100)
Indexed As: R. v. Arp (B.)
Supreme Court of Canada
Lamer, C.J.C., L’Heureux-Dubé,
Gonthier, Cory, McLachlin,
Iacobucci, Major, Bastarache
and Binnie, JJ.
November 26, 1998.
Summary:
The accused was convicted by a jury on two counts of first degree murder.
The British Columbia Court of Appeal, in a judgment reported 92 B.C.A.C. 286; 150 W.A.C. 286, dismissed the appeal. The accused appealed. The two principal issues on appeal were: (1) whether the trial judge properly instructed the jury that they could draw conclusions from similar fact evidence on a balance of probabilities and (2) did the admission into evidence of hair samples obtained by consent for one police investigation and used in connection with a separate investigation 2.5 years later violate the accused’s s. 8 Charter rights.
The Supreme Court of Canada dismissed the appeal.
Civil Rights – Topic 1222
Security of the person – Lawful or reasonable search – Consent to search or seizure – [See
Civil Rights – Topic 1404.2
].
Civil Rights – Topic 1404.2
Security of the person – Law enforcement – Hair and bodily fluid samples – On July 26, 1990, an accused charged with murder gave hair samples to police – Following a preliminary inquiry, the accused was discharged – Over two years later, the accused was charged with another murder and recharged with the original murder – Police obtained the hair samples from the R.C.M.P. laboratory under a search warrant – At issue was whether the admission into evidence of hair samples obtained by consent for the prior investigation and used in the subsequent investigation 2.5 years later violated the accused’s s. 8 Charter rights – The Supreme Court of Canada affirmed that the accused’s s. 8 Charter rights were not infringed – The court stated that “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 the unconditional and reasonably informed consent of the [accused], he ceased to have any expectation of privacy in them” – Even assuming the accused had some expectation of privacy, the samples were seized in 1993 under a properly issued search warrant that was not challenged – See paragraphs 82 to 91.
Civil Rights – Topic 1444
Security of the person – Right to privacy -Expectation of privacy – [See
Civil Rights – Topic 1404.2
].
Civil Rights – Topic 3157.3
Trials – Due process, fundamental justice and fair hearings – Criminal and quasi-criminal proceedings – Procedure contrary to fundamental justice – [See second
Criminal Law – Topic 4352.1
].
Civil Rights – Topic 4909
Presumption of innocence – Circumstances not infringing presumption – [See second
Criminal Law – Topic 4352.1
].
Criminal Law – Topic 4352.1
Procedure – Jury charge – Directions regarding similar fact evidence – The Supreme Court of Canada stated that “where similar fact evidence is admitted to prove identity in a multi-count indictment situation, a proper charge to the jury should include the following factors: … (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 is 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 of course 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.” – See paragraph 80.
Criminal Law – Topic 4352.1
Procedure – Jury charge – Directions regarding similar fact evidence – The accused was convicted on two counts of murder, relating to deaths occurring several years apart – The trial judge admitted similar fact evidence and instructed the jury that if they were satisfied that it was “likely” that the offences were committed by one person, they could consider the evidence of each count in determining whether the accused committed the offences – The accused submitted that the failure to instruct the jury that they must be satisfied “beyond a reasonable doubt” (rather than on a balance of probabilities) that the same person committed both murders denied the accused the right to be presumed innocent (Charter, s. 11(d)) and violated the principles of fundamental justice (Charter, s. 7) – The Supreme Court of Canada held that the jury charge was not in error and the accused’s Charter rights were not infringed – See paragraphs 58 to 75.
Criminal Law – Topic 5213
Evidence and witnesses – Admissibility and relevancy – Similar acts – When admissible – The Supreme Court of Canada stated that “in considering the admissibility of similar fact evidence, the basic rule is that the trial judge must first determine whether the probative value of the evidence outweighs its prejudicial effect. In most cases where similar fact evidence is adduced to prove identity it might be helpful for the trial judge to consider the following suggestions in deciding whether to admit the evidence: (1) Generally where similar fact evidence is adduced to prove identity a high degree of similarity between the acts is required in order to ensure that the similar fact evidence has the requisite probative value of outweighing its prejudicial effect to be admissible. The similarity between the acts may consist of a unique trademark or signature on a series of significant similarities. (2) 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. (3) There may well be exceptions but as a general rule if there is such a degree of similarity between the acts that it is likely that they were committed by the same person then the similar fact evidence will ordinarily have sufficient probative force to outweigh its prejudicial effect and may be admitted. (4) 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.” – See paragraph 50.
Criminal Law – Topic 5213
Evidence and witnesses – Admissibility and relevancy – Similar acts – When admissible – The Supreme Court of Canada stated that “a principled approach to the admission of similar fact evidence will in all cases rest on the finding that the accused’s involvement in the alleged similar acts or counts is unlikely to be the product of coincidence” – See paragraph 45.
Criminal Law – Topic 5213
Evidence and witnesses – Admissibility and relevancy – Similar acts – When admissible – At issue was whether a trial judge should be required to conclude not only that the evidence suggested that similar acts were the work of one person with sufficient force to outweigh the prejudicial effect of the evidence, but that the similar acts were likely the acts of the accused – The Supreme Court of Canada stated that “once the trial judge has concluded that the similar acts were likely the work of one person and that there is some evidence linking the accused to the alleged similar acts, it is not necessary to conclude that the similar acts were likely committed by the accused. The answer to this question may well determine guilt or innocence. This is the very question which the trier of fact must determine on the basis of all the evidence related to the similar acts, including of course the accused’s involvement in each act. … This only requires that the trial judge be satisfied that there is some evidence which links the accused to the similar acts. … evidence which discloses no more than a mere possibility that the alleged similar act is the act of the accused will not suffice to render the similar fact evidence admissible.” – See paragraphs 55 to 57.
Criminal Law – Topic 5214.1
Evidence and witnesses – Admissibility and relevancy – Similar acts – To prove identity of accused – [See first
Criminal Law – Topic 5213
].
Cases Noticed:
R. v. Simpson (1977), 35 C.C.C.(2d) 337 (Ont. C.A.), refd to. [para. 32].
R. v. Lawson (K.C.) (1994), 45 B.C.A.C. 14; 72 W.A.C. 14 (C.A.), refd to. [para. 32].
R. v. Doan (M.D.) (1996), 81 B.C.A.C. 192; 132 W.A.C. 192 (C.A.), refd to. [para. 32].
R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81; 44 C.C.C.(3d) 193; 66 C.R.(3d) 1, refd to. [para. 33].
R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321, refd to. [para. 34].
R. v. Koufis, [1941] S.C.R. 481, refd to. [para. 38].
R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341, refd to. [para. 39].
Director of Public Prosecutions v. Boardman, [1975] A.C. 421, disagreed with in part [para. 39].
R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321, refd to. [para. 40].
R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 41].
R. v. Hoch (1988), 165 C.L.R. 292 (Aust. H.C.), refd to. [para. 43].
R. v. Scopelliti (1981), 63 C.C.C.(2d) 481 (Ont. C.A.), refd to. [para. 43].
R. v. P., [1991] 3 All E.R. 337; 130 N.R. 306 (H.L.), refd to. [para. 44].
R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63, refd to. [para. 46].
R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 47].
R. v. Charemski (J.), [1998] 1 S.C.R. 679; 224 N.R. 120; 108 O.A.C. 126, refd to. [para. 47].
R. v. Barnes, [1995] 2 Cr. App. R. 491 (C.A.), refd to. [para. 49].
R. v. Scarrott (1977), 65 Cr. App. R. 125 (C.A.), refd to. [para. 52].
R. v. Khan (M.A.) (1996), 110 Man.R.(2d) 241; 118 W.A.C. 241; 49 C.R.(4th) 160 (C.A.), refd to. [para. 52].
R. v. Sweitzer, [1982] 1 S.C.R. 949; 42 N.R. 550, refd to. [para. 54].
Harris v. Director of Public Prosecutions, [1952] A.C. 694 (H.L.), refd to. [para. 54].
R. v. Ross, [1980] 5 W.W.R. 261 (B.C.C.A.), refd to. [para. 55].
R. v. J.T.S., [1997] A.R. Uned. 49 (C.A.), refd to. [para. 55].
R. v. Eng (M.B.) (1995), 56 B.C.A.C. 18; 92 W.A.C. 18 (C.A.), refd to. [para. 58].
R. v. Studer (B.P.) (1996), 181 A.R. 399; 116 W.A.C. 399 (C.A.), refd to. [para. 60].
R. v. Neale (R.S.) (1995), 169 A.R. 378; 97 W.A.C. 378; 31 Alta. L.R.(3d) 424 (C.A.), refd to. [para. 60].
R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 66].
R. v. Bouvier (1984), 11 C.C.C.(3d) 257 (Ont. C.A.), affd. [1985] 2 S.C.R. 485; 64 N.R. 321, refd to. [para. 66].
R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142, refd to. [para. 68].
R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81, refd to. [para. 70].
R. v. Ward, [1979] 2 S.C.R. 30; 25 N.R. 514, refd to. [para. 71].
R. v. Cullen (1989), 36 O.A.C. 195; 52 C.C.C.(2d) 459 (C.A.), refd to. [para. 76].
R. v. Verney (M.) (1993), 67 O.A.C. 279; 87 C.C.C.(3d) 363 (C.A.), refd to. [para. 76].
R. v. R.A.M. (1994), 97 Man.R.(2d) 70; 79 W.A.C. 70; 94 C.C.C.(3d) 459 (C.A.), refd to. [para. 76].
R. v. Merdsoy (B.) (1994), 121 Nfld. & P.E.I.R. 181; 377 A.P.R. 181; 91 C.C.C.(3d) 517 (Nfld. C.A.), refd to. [para. 76].
R. v. Grdic, [1985] 1 S.C.R. 810; 59 N.R. 61, refd to. [para. 77].
R. v. Ollis, [1900] 2 Q.B. 758, refd to. [para. 78].
G. (an infant) v. Coltart, [1967] 1 All E.R. 271 (Q.B.), refd to. [para. 78].
R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [para. 84].
R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 87].
Authors and Works Noticed:
Canada, Law Reform Commission, Working Paper No. 34, Investigative Tests (1984), pp. 68, 69 [para. 86].
Canadian Criminal Jury Instructions (1997 loose-leaf), vol. 1, sects. 4.60 [para. 60]; 4.61 [para. 33].
Eggleton, Sir Richard, Evidence, Proof and Probability (2nd Ed. 1978), p. 83 [para. 38].
Mahoney, R., Similar Fact Evidence and the Standard of Proof, [1993] Crim. L.R. 185, pp. 196, 197 [para. 55].
McWilliams, Peter K., Canadian Criminal Evidence (3rd Ed. 1998 loose-leaf), p. 11-26.1 [para. 49].
Percival, Richard, Case Comment on R. v. Brown, Wilson, McMillan and McLean, [1997] Crim. L.R. 502, p. 503 [para. 49].
Smith, J.C., Case Comment on R. v. Hurren, [1962] Crim. L.R. 770, p. 771 [para. 47].
Counsel:
Gil David MacKinnon, Q.C., and Thomas Arbogast, for the appellant;
Oleh S. Kuzma, for the respondent;
S. Ronald Fainstein, Q.C., and Chantal Proulx, for the intervenor, Attorney General of Canada;
Jamie Klukach, for the intervenor, Attorney General for Ontario;
Arnold Schlayer (written submission only), for the intervenor, Attorney General for Alberta.
Solicitors of Record:
G.D. MacKinnon, Q.C., Vancouver, B.C., for the appellant;
Attorney General of British Columbia, Victoria, B.C., for the respondent;
Attorney General of Canada, Ottawa, Ontario, for the intervenor, Attorney General of Canada;
Attorney General for Ontario, Toronto, Ontario, for the intervenor, Attorney General for Ontario;
Attorney General for Alberta, Edmonton, Alberta, for the intervenor, Attorney General for Alberta.
This appeal was heard on June 18, 1998, before Lamer, C.J.C., L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada.
On November 26, 1998, Cory, J., delivered the following judgment in both official languages for the Supreme Court of Canada.
