



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Carpenter,









2010 BCCA 27




Date: 20100120

Docket:
CA036162

Between:

Regina

Respondent



And

Michael Wayne Carpenter

Appellant




RESTRICTION ON PUBLICATION:  An order has been
made in this case directing that the identity of the complainants and any
information that could disclose the identity of the complainants should not be
published in any document or broadcast in any way pursuant to s. 486.4(2)
of the
Criminal Code
.





Before:



The Honourable Madam
  Justice Ryan





The Honourable Mr. Justice Hall





The Honourable Madam Justice Garson




On appeal from the Supreme Court of British Columbia, November 29,
2006,

(
R. v. Carpenter
,
2006 BCSC 1936,
78175-3)




Counsel for the Appellant:



D.
  Layton





Counsel for the Crown Respondent:



M.
  Mereigh





Place and Date of Hearing:



Vancouver,
  British Columbia





November 3, 2009





Place and Date of Judgment:



Vancouver
, British Columbia





January
  20, 2010









Written Reasons by
:





The Honourable Mr. Justice Hall





Concurred in by:





The Honourable Madam Justice Ryan

The Honourable Madam Justice Garson






Reasons for
Judgment of the Honourable Mr. Justice Hall:

[1]

Michael Wayne Carpenter appeals against
convictions for sexual assault and confinement of two women on separate dates
in July and September, 2005.  He was found guilty after a jury trial on 29
November 2006.  After taking into consideration two years of prior custody, he
was sentenced by Silverman J. on 31 August 2007 to a global sentence of
eight years of additional imprisonment.  Because there was some delay in the
appointment of counsel, the notice of appeal was not filed in time.  The Crown
takes no objection to an extension of time and I would grant an order extending
the time for filing the notice of appeal.

[2]

The two complainants were both young women engaged
in cleaning hotel rooms at the times of the respective assaults.  Although both
complainants had a very limited opportunity to observe their assailant, both
observed him to be either naked, or semi-naked from the waist down, as he was
leaving the respective rooms in the hotels where the assaults occurred.  Both
women had been vacuuming when they were assaulted from behind without warning. 
Each of the victims had something described as a pillowcase or pillowcase
protector pulled over her face which obviated her ability to observe the
assailant.  Both women were jabbed with an item, possibly a pen, and told to
cooperate with the assailant.  The victims were pushed to the floor or a bed
and a sexual assault was perpetrated upon them by their assailant.  Fortunately,
both were able to make a sufficient commotion to soon scare off the assailant.

[3]

The victim of the July assault, Ms. V.,
could not identify anyone from a set of photographs shown to her by police and
no forensic evidence was developed at the scene of the assault.  All she had
seen was a man exiting the room pulling up his trousers as he left.  Ms. B.,
the victim of the September assault, also had a very limited opportunity to
observe her assailant because a pillowcase or pillowcase protector was thrown
over her head.  All she noted out of the corner of her eye as the person
entered the room from behind her was that the individual appeared to be wearing
nothing below the waist.  A pen found on the floor at the scene of the
September assault yielded a DNA match to the appellant.  Fingerprint evidence linked
to the appellant was also discovered on a doorknob at this hotel room.

[4]

Soon after the September incident, the appellant
was arrested and charged with the sexual assaults of Ms. V. and Ms. B.
and, as well, with the sexual assault of a female in her early teens who had
been assaulted in somewhat similar circumstances in March 2005.  In the March
case, the complainant could not identify the assailant because she too had had
a pillowcase placed over her head.  Ultimately, the trial judge was persuaded
that he ought to sever this count from the other two counts because of possible
prejudice to the appellant.

[5]

The appellant advanced three grounds of appeal. 
It was submitted the trial judge erred in ruling the similar fact evidence was
admissible absent some evidentiary link between the appellant and both
incidents.  In the July incident, there was nothing aside from the similar act September
evidence that linked the appellant to this assault.  The appellant also submits
that because the similar fact evidence regarding the September incident bears
the entire weight of proving identity concerning the July incident, the trial
judge erred in not using a criminal standard of proof in deciding whether to permit
this evidence to go before the jury.  Additionally, it was submitted that the
verdict of the jury convicting the appellant of the July incident was
unreasonable as the only evidence connecting the appellant to this assault was the
September incident.

[6]

The learned trial judge allowed the evidence of
both incidents to be placed before the jury.  He said this at para. 53 of
his reasons:

On a review of the cases, I am
satisfied that there does not have to be any independent evidence linking the
accused and the offence in question so long as there are two preconditions
present, and they are as follows:

1.         a
likelihood that the offence in question and the similar fact incident sought to
be relied on in support of the offence in question, were committed by the same
person.  I have already made that determination.

2.         that
there be an evidentiary link between the accused and the similar fact evidence
sought to be relied upon.

If both of those
factors are present, there does not have to be a link between the accused and
the offence which is sought to be supported by the similar fact evidence.

[7]

The judge instructed the jury that they could
only convict the appellant of the September incident, where DNA evidence and
fingerprint evidence existed, if they were convinced beyond a reasonable doubt
that the appellant had assaulted Ms. B. in the hotel room on that
occasion.  They were not to consider any of the circumstances of the July
assault in their consideration of this incident of assault in September.  He
instructed them that if they were so satisfied, the jury would have to go on to
consider whether or not they were satisfied beyond a reasonable doubt that the
individual who committed the September assault was the same individual who had committed
the July assault.  Thereafter, they would have to go on to consider whether
they were convinced beyond a reasonable doubt that the appellant was the person
who assaulted Ms. V. in July.  As I understand it, it was not argued before
the trial judge that he ought to be convinced beyond a reasonable doubt that
the same assailant committed the offences before admitting the similar act evidence. 
It seemed then to have been accepted at trial that the test for determining the
admissibility of this evidence was to be on a balance of probabilities standard.

[8]

In ruling on the admissibility of this evidence,
the learned trial judge referred to the leading case on the use of similar act
evidence to prove identity,
R. v. Arp
, [1998] 3 S.C.R. 339, 129 C.C.C.
(3d) 321.  In
Arp
, the question was whether or not similar act evidence
was admissible to prove that the appellant, Arp, killed two young women who
died in the Prince George area.  There was some evidence linking the appellant
to the first victim, who was probably murdered, and significant evidence
linking him to victim number two who was proven to have been murdered. 
Ultimately, the similar act evidence concerning the second victim was allowed
to be considered by the jury on the issue of whether or not the appellant was
guilty of killing both women.  The convictions were sustained on appeal.  In
the course of holding that the similar act evidence was properly admitted, Cory J.,
speaking for the Court, said this at para. 48:

...  Where the
fact in issue is the identity of the perpetrator of the crime, then in the
usual course of events the trial judge must assess the degree of similarity
demonstrated by the manner in which the acts in question were committed to
determine whether it is
likely
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.

[9]

He went on to say at para. 50:

In summary, 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 accuseds
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 accuseds guilt for any one act.

Once again these
are put forward not as rigid rules but simply as suggestions that may assist
trial judges in their approach to similar fact evidence.

[10]

This Court pointed out in
R. v. Brisbin
(1995),
101 C.C.C. (3d) 334, 64 B.C.A.C. 54, and in
R. v. Bush
, 2001 BCCA 447,
159 C.C.C. (3d) 161, that similar act evidence is a species of circumstantial
evidence.  The Court said this in
Brisbin
, a case in which similar act
evidence was used to prove the identity of the appellant as an arsonist, about
the test for admissibility of similar act evidence:

[32]      ...  The more striking the
similarities the more probative the evidence will be.  In a paper prepared for
the 1994 Federation of Law Societies National Criminal Program, Marc Rosenberg
analyzed the issue in this way:

It is, of course, impossible to
generalize as to the degree of similarity which makes the evidence probative of
the issue.  Whether one uses Wigmore's notion of common features or the
concept of striking similarity [or startlingly similar]
what is really
being sought is some cluster of features which makes mere coincidence so
unlikely as to give the evidence real probative value
.  Since what is
involved is the concept of a system or design, there will usually be some nexus
between the acts in time and in place.  The cluster of similar features should,
on the whole be distinctive.   (Emphasis added.)

[33]      In my
view, counsel for the appellant cannot be said to be wrong when he submits that
where the only evidence of identity offered by the Crown is similar fact
evidence the similarities ought to be strikingly similar.  But, as Mr. Rosenberg
makes the point, to say that the evidence must be strikingly similar is really
just to underline the necessity that the evidence possess real probative value
in light of the purpose for which the evidence will be used.  The prejudice
inherent in similar fact evidence is significant.  There is always a serious
risk that the trier of fact will over-estimate the value of the evidence.  At
the end of the day the probative value of the similar fact evidence must
outweigh its prejudicial value and to do so the evidence of similarity must be
powerful.

[11]

In the present case, the essence of the
appellants argument is that as the only way to connect him to the July offence
is through evidence from the September assault, such evidence should not be
admissible as similar fact evidence unless the trial judge is satisfied beyond
a reasonable doubt that the same individual committed both crimes.  Though
usually questions of admissibility are determined on a balance of
probabilities, there are exceptions where the trial judge must be satisfied of
certain pre-conditions to admissibility beyond a reasonable doubt.  One such
exception is that the voluntariness of a statement must be proven beyond a
reasonable doubt before it is placed before a jury.  Counsel for the appellant
relied on this language found in the judgment of Cory J. in
Arp
:

70        ...  The general principles
enunciated in these cases indicate that the jury should determine, on a balance
of the probabilities, whether the similarities between the acts establish that
the two counts were committed by the same person.  If that threshold is met,
the jury can then consider all the evidence relating to the similar acts in
determining whether, beyond a reasonable doubt, the accused is guilty.

71        However,
the general rule that preliminary findings of fact may be determined on a
balance of probabilities is departed from in those certainly rare occasions
when admission of the evidence may itself have a conclusive effect with respect
to guilt.  For example, where the Crown adduces a statement of the accused made
to a person in authority, the trial judge must be satisfied beyond a reasonable
doubt of the voluntariness of the statement.  That evidence may of itself, if
accepted as true, provide conclusive proof of guilt.  Since doubt about the
statements voluntariness also casts doubt on its reliability, proof beyond a
reasonable doubt is warranted.  See
Ward v. The Queen
, [1979] 2 S.C.R.
30.  If this were not the rule, the jury would be permitted to rely on evidence
which it could accept as extremely cogent even though the inherent reliability
of that evidence was in doubt.

[12]

Counsel for the appellant also referred to comments
made by the Supreme Court of Canada in
R. v. H.(L.T.)
, 2008 SCC 49,
[2008] 2 S.C.R. 739, a recent case concerned with the
Charter
rights of
an accused young offender.  The issue in that case was whether as a
pre-condition for admissibility the Crown had to prove beyond a reasonable
doubt not only the voluntariness of a statement but also that the police had
made an explanation to the young person of his rights.   Fish J., writing
for the majority, referred to the passage above from the judgment of Cory J.
in
Arp
.  I note that the case of
H.(L.T.)
involved the
admissibility of a statement, the sort of situation referred to by Cory J.
in para. 71 of his reasons in
Arp
.  In
Arp
, Cory J.
went on to say:

72        Similar fact evidence, on the
other hand, as circumstantial evidence, must be characterized differently,
since, by its nature, it does not carry the potential to be conclusive of
guilt.  It is just one item of evidence to be considered as part of the Crowns
overall case.  Its probative value lies in its ability to support, through the
improbability of coincidence, other inculpatory evidence.  As with all
circumstantial evidence, the jury will decide what weight to attribute to it. 
The mere fact that in a particular case, similar fact evidence might be
assigned a high degree of weight by the trier is entirely different from the
concept that, by its very nature, the evidence has the potential to be decisive
of guilt.

73        As the
intervener the Attorney General for Ontario concedes, it is, of course,
conceivable for a single item of circumstantial evidence to be the only
evidence of an essential element of the offence in a given case.  The criminal
standard of proof would have to be applied in those circumstances in order to
ensure compliance with the requirement that every essential element in a
criminal prosecution must be proven beyond a reasonable doubt.  Thus where the
Crowns case on the issue of identity is based entirely on the underlying unity
between the similar acts, it follows that the standard of proof beyond a
reasonable doubt will govern the jurys determination whether one person must
have committed both acts.

[13]

Counsel for the appellant suggested in argument
that there seemed to be some difference between the test being enunciated by
Cory J. in the earlier passage in his reasons and this later passage in
his reasons.  It seems to me that this difference is perfectly explicable along
these lines:  in the later passage in his reasons in
Arp
, Cory J.
was dealing with the methodology by which a jury ought to be instructed to deal
with the issue.  He was not there dealing with the question of admissibility, a
question for the trial judge to decide in a case held with a jury.  I see no
inconsistency in the two passages.  The passages are simply dealing with
different subject matters at different stages of a trial.  I observe that the
judgment in
H.(L.T.)
is entirely consistent with the remarks of Cory J.
in
Arp
concerning the test for admissibility of statements since this
was essentially what was at issue in the case of
H.(L.T.)
.

[14]

In the instant case, the evidence about the
September assault on Ms. B. was, having regard to the striking similarity in
the incidents, very powerful circumstantial evidence that the September
assailant was the person who assaulted Ms. V. in July.  But this sort of
evidence is of a different genus from evidence such as a statement.  Similar
act evidence is circumstantial evidence, whereas a statement is an admission
which, if accepted, is conclusive evidence of guilt.  Circumstantial evidence
will have greater or lesser weight depending on the view the jury takes of it
and is thus subject to a different threshold for admissibility, as was explained
by Cory J. in
Arp
.

[15]

It was submitted that a charge to a jury in a
case like the instant one is so complicated that it could be impossible for a
jury to properly appreciate its task.  I do not consider that to be the situation
in the present case.  Here, in my view, the charge to the jury was quite
straightforward.  The jury had to be satisfied beyond a reasonable doubt that
the appellant was the assailant in the September incident before they could
convict the appellant of that offence and they were so instructed.  The jury
was correctly instructed not to consider evidence about the July incident in
making this determination.  There seems nothing difficult about that.  If the
jury concluded beyond a reasonable doubt that both incidents were committed by
the same person, then they could use evidence of the September incident to
conclude beyond a reasonable doubt the guilt of the appellant on the July
incident.  That is entirely consistent with what Cory J. articulated in
R.
v. Arp
.  I do not regard this reasoning path or process to be particularly
difficult or convoluted.

[16]

This was a case in which there were a number of
striking similarities between the incidents.  The judge enunciated several of
these in his reasons:

[37]      The two which continue to have
striking similarities with each other when the details are considered are the
Coast incident and the Days Inn incident.  Some of the detailed similarities
between these two are as follows:

1.         The
victims were both young women in their twenties;

2.         They
were both working as housekeepers/chambermaids at the time of the incidents;

3.         They
were both working on the second floor of their respective hotels where guest
rooms are located;

4.         They
were actually working at the time in a guest room, each in their own hotel,
cleaning it up after the guest has left for the day;

5.         Their supply
cart was in the hallway outside the room they were working in;

6.         The door
to the room that they were in was left unlocked;

7.         They had
both finished the entirety of their cleaning routine in the room they were in
except for the chore that they always left to the last, which was vacuuming;

8.         They
were both engaged at the time the assault commenced in that final chore of
vacuuming the rug with an operating, noisy vacuum cleaner at the time;

9.         They
were both attacked from behind;

10.       There was
a pillowcase or something similar placed over their heads at the commencement
of the attack;

11.       Pillowcases
were items that were visible and accessible to anybody walking by the cart in
the hallway outside;

12.       The pants
of the assailant were either down at the ankles or completely off;

13.       They were
both sexually assaulted with touching and attempts to touch them in a sexual
way;

14.       They were
both threatened that they would be stabbed or cut if they resisted or made
noise;

15.       They both
had an object held against a part of their body, a different part for each,
consistent with the threat that they would be stabbed or cut;

16.       The
assailant ran out and fled after the victim resisted and after he, the
assailant, unsuccessfully attempted to overcome that resistance;

17.       The
entirety of the assault occurred within the same room that the victim was in
when the assault started.

The striking similarities pointed to an
unlikelihood of coincidence  see
R. v. Handy
, 2002 SCC 56, [2002] 2
S.C.R. 908, at paras. 41-42.

[17]

The trial judge did not in my opinion err in his
approach to admissibility.  Having found a very high degree of similarity
between the circumstances of the two incidents, the judge then correctly
instructed the jury on the approach it was required to take concerning proof of
the two incidents.  For the reasons I have enunciated, I would not accede to
the heads of argument advanced on behalf of the appellant concerning
admissibility and the instructions about the use of the evidence by the jury.

[18]

As regards the argument that the verdict of
guilty registered on the July incident was unreasonable as it rested wholly on
similar act evidence from the September incident, I am of the view that the
similarities were indeed striking.  This evidence in my opinion affords a
proper basis for the guilty verdict of the jury.  Applying the standard
adverted to in the cases of
R. v. Biniaris
, 2000 SCC 15, [2001] 1 S.C.R.
381, and
R. v. Yebes
, [1987] 2 S.C.R. 168, 43 D.L.R. (4th) 424, I am not
of the view that the verdict of guilt on the July offence was unreasonable.  I
would dismiss this appeal from conviction.

The Honourable Mr. Justice Hall

I agree:

The Honourable
Madam Justice Ryan

I agree:

The
Honourable Madam Justice Garson


