



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tsigirlash, 2019 ONCA 650

DATE: 20190809

DOCKET: C61139

Feldman, Paciocco and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Tsigirlash

Appellant

J. Randall Barrs and Richard Litkowski, for the
    appellant

Jill Cameron, for the respondent

Heard: February 11, 2019

On appeal from the conviction entered by Justice James A.
    Ramsay of the Superior Court of Justice on June 19, 2015, with reasons reported
    at 2015 ONSC 4011.

Zarnett J.A.:

A.

Introduction

[1]

The appellant was the principal of Auto Enterprises Inc., a salvage
    yard, repair shop and seller of car parts operating in the Niagara Region.

[2]

After a June 2011 police investigation, the appellant was charged with 47
    offences. Forty-four of the charges alleged possession of stolen property, and
    three alleged fraud over $5000. Fourteen of the stolen property charges
    involved possession of stolen vehicles; the balance alleged possession of stolen
    car parts. The fraud charges alleged the appellant had defrauded three
    different individuals by selling them automobiles that contained stolen parts.

[3]

The offences were alleged to have occurred at three locations: the Auto
    Enterprises premises on Lincoln Avenue and two other Niagara Region properties
    where the appellant was alleged to have stored inventory (the Kucan and the Seneca
    Steel properties).

[4]

The charges proceeded to trial on a multi-count (47-count) indictment
    before a judge alone.

[5]

Neither before trial, during trial, nor in closing argument was there
    any request by the Crown for the admission or use of evidence on any individual
    count as similar fact evidence on the other counts.

[6]

The trial judge gave oral reasons at the conclusion of trial on June 19,
    2015, indicating that more extensive written reasons would follow. In his oral
    reasons he acquitted the appellant on two stolen property charges and one fraud
    charge, stayed one charge
[1]
and convicted the appellant on the balance of the counts other than one that
    had been withdrawn at the opening of trial.

[7]

The trial judge delivered written reasons on June 22, 2015, more fully
    explaining the result he had reached. In those written reasons, the trial judge
    stated that he would use evidence across counts as similar fact evidence. His
    written reasons indicate that he did so.

[8]

The appellant appeals against conviction
[2]
,
    raising the following four grounds:

a)

The trial judge erred
    in his use of evidence across counts as similar fact evidence.

b)

The trial judge
    misapprehended evidence and failed to give weight to exculpatory evidence.

c)

The trial judge
    erred in his approach to circumstantial evidence and treated the case as a
    credibility contest.

d)

The trial judge did
    not properly instruct himself on exculpatory evidence independent from the
    appellants testimony.

[9]

In my view, the trial judge erred in his approach to similar fact
    evidence. I would therefore allow the appeal. Because of that conclusion, it is
    not necessary to deal with the other grounds the appellant raises.

B.

THE TRIAL AND THE TRIAL JUDGES REASONS

[10]

A
    major issue at trial was whether the appellant knew that the vehicles and
    vehicle parts identified in each of the stolen property counts had been stolen,
    and whether he knew that the vehicles that were the subject of the fraud
    charges contained stolen parts and therefore were not what the purchasers of
    the vehicles thought they were getting. The appellants position was that he
    did not know that any of the items were stolen. The defence attributed the
    presence of any stolen property to a dishonest former business associate. Further,
    the appellant denied a connection to the Kucan and Seneca Steel properties. As
    the trial judge put it, [t]he position of the defence is that [the appellant]
    did not know that any of the items in question had been stolen and that he had
    no measure of control over the items at the Kucan property and the Seneca Steel
    property.

[11]

The
    Crown did not refer to similar fact evidence in its opening statement. The
    evidence led at trial was not accompanied by, and we were not pointed in
    argument to, any request on the record for evidence of one count to be used as
    similar fact evidence on the others. Nor did the Crown so request in its closing
    argument; instead, the Crown at trial essentially argued the case by going through
    the evidence count by count.

[12]

Nonetheless,
    the trial judge stated early in his written reasons that he would apply
    evidence across counts as similar fact evidence:

I propose to use evidence across counts as similar fact
    evidence on the issue of whether the accused knew that an item in his
    possession was stolen. It is easier to possess a small amount of stolen
    property unknowingly than a large amount. Evidence of possession of large
    amounts of stolen property could make it more probable that the accused knew
    that the inventory he had consisted of stolen property. Using the evidence
    across counts for that purpose would provide evidence that is sufficiently
    probative to outweigh its prejudicial effect. It is relevant and probative
    without resort to propensity reasoning. The acts that are the subject matter of
    the evidence are sufficiently similar to be probative of knowledge. In
    possession of stolen property cases, other acts of possession of stolen
    property are a classic use of similar fact evidence on the issue of knowledge.

[13]

After
    making that statement, the trial judge proceeded to summarize the evidence on the
    counts and to describe evidence that linked the Auto Enterprises property to the
    Kucan and Seneca Steel properties. As part of his summary of the evidence, he
    referred to the vehicles that were the subject of Counts 3, 4, 5, 6, 7, 8, 9, 10,
    11, 12, 13, 14, 15 and 16 as having missing Vehicle Identification Numbers (VINs)
    or at least one VIN belonging to a different vehicle.

[14]

In
    his summary of the evidence on the counts, the trial judge dealt with some
    counts individually and grouped other counts together.

[15]

The
    trial judge then provided an analysis of the evidence and an explanation of his
    conclusions. He began by stating that the evidence of the defence witnesses did
    not raise a reasonable doubt on any count. He disbelieved the evidence of the
    appellant and his witnesses that the appellant had withdrawn from the day-to-day
    operations of Auto Enterprises in 2010 (before the time relevant to most of the
    counts), had nothing relevant to do with the Kucan property or the Seneca Steel
    property, and did not know of any stolen property at any location.

[16]

The
    trial judge then identified the question as whether the evidence that he did
    accept proved the guilt of the appellant beyond a reasonable doubt.

[17]

The
    trial judge proceeded to make a number of findings specific to some counts, and
    a number findings drawn from a use of the evidence across counts. These
    included findings that the appellant was running a stolen car and parts
    operation, that [p]rocuring stolen vehicles and procuring wrecks to provide
    false VINs to disguise the stolen vehicles was a key part of the business and
    that the absolute number [of stolen parts] present, among other things, made
    the case that [the appellant] was deliberately dealing in stolen goods. I
    address those findings and the way in which they were used in the Analysis
    portion of these reasons.

[18]

The
    trial judge convicted the appellant on 42 counts. He acquitted the appellant on
    three counts (Counts 3, 4 and 12). On one count, the evidence did not show that
    the stolen vehicle had been on any premises linked to the accused; it was not found
    on the Auto Enterprises, Kucan, or Seneca Steel property by the police. On
    another, the evidence did not show that the vehicle in question was in fact
    stolen or ever on the Auto Enterprises premises. On the third, the trial judge
    was not satisfied that the purchaser of a vehicle with stolen parts been
    deceived by the appellant; the purchaser may have known that the car contained
    stolen parts. The trial judge stayed one count (Count 17).

C.

THE POSITIONS OF THE PARTIES

[19]

The
    appellant, in oral argument but not in his factum, pointed out that the Crown
    had not applied for the use of evidence across counts as similar fact evidence 
    the first time the concept appeared was in the trial judges reasons. The
    appellant characterizes this not as an independent ground of appeal, but as providing
    important context for what he says was the trial judges erroneous approach to
    the similar fact evidence issue. The appellant argues that the trial judges single-paragraph
    consideration of why he could use evidence across counts as similar fact
    evidence, and his use of it, contained the following flaws:

(a)
    The idea that the issue of knowledge was one to which similar fact evidence
    should apply was the result of circular reasoning. It assumes the very
    conclusion that the evidence was ostensibly being used for, namely that the
    appellant possessed the items (which includes knowing that they were stolen).
    Without that assumption, the number of stolen items in question could not
    assist on the knowledge issue.

(b)
    The trial judge elided the issue that others were responsible for the presence
    of the stolen property, which was the defence position at trial. He used
    evidence across counts without adverting to its relationship to this issue.

(c)
    There was no meaningful analysis of the probative value and prejudicial effect
    of the similar fact evidence, which is necessary to decide whether similar fact
    evidence can be used across counts.

[20]

The
    Crown conceded on appeal that there had been no request by trial counsel for
    the use of evidence across counts as similar fact evidence. But Crown counsel
    argues that this courts decision in
R. v. T.B.L.
(2003),

173 O.A.C. 159 (C.A.),
    stands for the proposition that, where the defence should have known of the
    possibility of the use of evidence as similar fact evidence, there is no
    prejudice when such use occurs. And she argues that the trial judge did not err
    in treating evidence across counts as admissible similar fact evidence because
    the possession of each stolen vehicle or part was highly probative to whether
    the appellant was running an illegal chop shop business, therefore rebutting
    any innocent explanation for the presence of stolen vehicles or parts on the
    properties. The Crown submits that the trial judge linked the appellant to the
    stolen vehicles and parts in each count, and that in a multi-count, judge-alone
    trial there is a minimal risk of prejudice arising from the use of evidence
    across counts.

[21]

The
    Crown also argues that the trial judges principal conclusions on most counts were
    reached not on the basis of evidence applied across counts, but based on
    evidence relating to those individual counts.

D.

Analysis

(1)

The Relevant Principles Relating to the Use of Evidence Across Counts

[22]

In
    order to explain why, in my view, the trial judges use of evidence across
    counts as similar fact evidence constituted a reversible error, I begin by
    outlining some of the applicable principles.

(a)

The General Rule: Presumptive Inadmissibility

[23]

The
    general rule is that evidence of the accuseds discreditable conduct is inadmissible,
    unless that conduct is the subject-matter of the charge in question: Sidney N.
    Lederman, Alan W. Bryant & Michelle K. Fuerst,
Sopinka, Lederman
    & Bryant: The Law of Evidence in Canada
, 5th
    ed. (Toronto: LexisNexis Canada, 2018), at §11.1. This general rule operates
    both as a pure rule of admissibility and as a rule of restricted admissibility.
    When the proposed evidence relates to extrinsic misconduct  discreditable
    conduct for which the accused is not charged  the rule determines whether that
    evidence will be heard. When the request is to use evidence already admissible
    on one count to prove a separate count, the rule operates as a rule of restricted
    admissibility: the already-admitted evidence can be used only on the count to
    which it relates. In other words, evidence against an accused on one count of
    an indictment may not be used to prove the guilt of the accused on another
    count, unless the counts arise out of the same events: David M. Paciocco &
    Lee Stuesser,
The Law of Evidence
, 7th ed. (Toronto: Irwin Law, 2015),
    at p. 88.
[3]


[24]

The
    general inadmissibility rule will not apply where the evidence of discreditable
    conduct meets the test for similar fact evidence. But, importantly, there are a
    number of steps that must occur, and a number of factors that must be considered,
    before the similar fact evidence test is met and evidence on one count can be applied
    to others or evidence of extrinsic misconduct can be admitted at all.

[25]

These
    steps and factors are critical because similar fact evidence is presumptively
    inadmissible, whether the evidence of similar acts is evidence of other counts
    in the indictment or is evidence of extrinsic misconduct:
R. v. MacCormack
,
    2009 ONCA 72, at para. 48.

(b)

A Crown Request and an Admissibility Inquiry are Required

[26]

There
    are certain consequences to this presumptive inadmissibility. The first is that
    when the Crown wishes that presumptive inadmissibility to be displaced, it bears
    the onus of satisfying the trial judge that, on a balance of probabilities, the
    probative value of the evidence on a particular issue outweighs its prejudicial
    effect in the context of the case, and thus justifies its reception:
MacCormack
,
    at para. 48;
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at
    para. 55. The second consequence is that, to determine whether the Crown has
    met its onus to admit similar fact evidence, the court is to conduct an
    inquiry, often termed an admissibility inquiry
[4]
,
    focusing on the acts themselves:
MacCormack
, at paras. 52, 57.
[5]


[27]

It
    follows from the existence of an onus on the Crown to displace presumptive inadmissibility,
    and from the very notion of an admissibility inquiry, that a request by the
    Crown for similar fact treatment is a precondition to that treatment being
    given to evidence. The presumption and onus would lose their meaning, and an
    admissibility inquiry informed by the submissions of Crown and defence would
    not be possible, if a Crown request in some form were not made. The
Criminal
    Proceedings Rules for the Superior Court of Justice (Ontario)
,
    S.I./2012-7, for instance, require that an application be made where a party
    seeks to have evidence of similar acts, whether included as other counts or
    not, admitted: rr. 30.01-30.05. And where this court has excused the
    absence of a formal application to admit similar fact evidence, it has done so
    on the basis that there was an informal or implicit Crown request to admit the
    evidence, which was sufficient in the circumstances: see
T.B.L.
and
R. v. Graham
, 2015 ONCA 113, both discussed below
. When
    the Crown attempts to lead extrinsic evidence of similar acts or argues for
    certain uses of evidence across counts, the clear inference from that conduct may
    be that a request is being made for similar fact evidence treatment. When this
    inference is clear, the defence has a meaningful opportunity to respond, and
    the trial judge is in a position to properly assess the Crowns request, the
    lack of a formal application may be excused because no prejudice will have
    occurred. But a request must have been made in some form so as to give the
    defence this opportunity and to lay the groundwork for a proper admissibility
    inquiry.

(c)

An Identification of the Similar Acts and the Purpose for Which Evidence
    is to be Used is Required

[28]

Certain
    aspects of the admissibility inquiry, elaborated below, are also germane to a
    consideration of the trial judges approach here. They pertain in particular to
    the necessity of precisely identifying, at the outset of any consideration of similar
    fact evidence admissibility, what the similar acts are, the issue on which
    evidence of the similar acts is to be used, and the inferences the evidence is
    tendered to support.

[29]

The probative
    value part of the inquiry has two aspects. The first aspect addresses the
    logical 
nexus
established between the evidence of similar acts and
    the offence that the evidence is offered to prove:
MacCormack
, at para. 49
. Where the logical nexus
    depends on the similarity of the similar acts to the act charged, the probative
    value of the evidence will increase with the degree of similarity, because the
    probability that the similarity is a result of coincidence will decrease. The
    court must be satisfied that the objective improbability of coincidence has
    been established:
R. v. Arp
, [1998] 3 S.C.R. 339, at para. 48. This
    analysis cannot be done in the abstract, but only on the basis of specifically-identified
    similar acts.

[30]

Buttressing
    the requirement to specifically identify the similar acts is that the
    similarity analysis is conducted taking into account the specifics of the case
    and of the offence to which the evidence is sought to be applied. Factors such
    as proximity in time and place, similarity in detail and circumstances, number
    of occurrences, and distinctive features unifying the occurrences will all be
    considered in determining whether the evidence has the requisite degree of
    similarity to the offence charged under the circumstances:
MacCormack
,
    at para. 53;
Handy
, at para. 82.

[31]

The
    degree of similarity required for admission in a particular case will be
    determined by the issues in the case, the purpose for which the similar fact
    evidence is being tendered, and the other evidence tendered in the case:
Handy
,
    at paras. 76-80. For example, if similar fact evidence is tendered to help
    prove the identity of the person responsible for committing a crime, the court
    will demand a high degree of similarity between the acts and the offence
    charged:
MacCormack
, at para. 50. If similar fact evidence is tendered
    to help prove the accuseds intent, on the other hand, acts that may be less
    similar could still support a sufficiently compelling inference on that issue:
Handy
,
    at para. 80.

[32]

As
    the purpose the proposed similar fact evidence is intended to serve plays an
    important role in the courts admissibility analysis, it must be clearly
    defined as a prerequisite to that analysis:
Handy
, at para. 73. As
    stated by Binnie J. in
Handy
, at para. 82, judges must consider
    the cogency of the proffered similar fact evidence
in
    relation to the inferences sought to be drawn
, as well as the strength
    of the proof of the similar facts themselves (emphasis added). In assessing
    the probative value of the proposed similar fact evidence, it is necessary to
    determine the precise 
issue in question
 for which the Crown has sought
    to tender the evidence: at para. 99.

[33]

The
    balance of the considerations in the admissibility inquiry is also premised on the
    similar acts and the purpose for the use of evidence of those acts having been
    precisely identified.

[34]

The
    second aspect of the courts probative value analysis is the linkage inquiry.
    There must be a demonstrated link between the accused and the alleged similar
    acts as a precondition to admissibility:
MacCormack
, at para. 59. There
    must be some evidence that links the accused to the acts:
Arp
, at
    paras. 54, 56.

[35]

In
    the next part of the admissibility inquiry, the court assesses the proposed
    evidences prejudicial effect. It must do so in light of the proposed similar
    acts and the purpose of introducing evidence of them. The defined acts and
    purpose inform the courts consideration of the two types of prejudice that
    evidence of similar acts tends to carry: moral prejudice and reasoning
    prejudice. Moral prejudice refers to the risk that the accused will be stigmatized
    as a bad person and convicted on that basis. Reasoning prejudice includes the
    risk that the trier of fact will be distracted from their proper focus on the
    offence(s) charged, including because they may be confused by evidence of multiple
    incidents or may put more weight than is logically justified on the similar
    fact evidence, and the risk that unwarranted trial time will be consumed:
MacCormack
,
    at para. 55;
R. v. T.B.
, 2009 ONCA 177, 95 O.R. (3d) 21, at
    para. 26. The specific acts, the purpose of introducing evidence of them
    and the inferences sought to be drawn from that evidence are fundamental to
    this assessment.

[36]

For
    the same reasons, specifying the acts and their purpose is also fundamental to the
    final part of the inquiry, in which the court weighs the evidences probative
    value against its prejudicial effect to determine whether the former outweighs
    the latter on a balance of probabilities:
Handy
, at para. 55.

[37]

In
    summary, the admissibility inquiry itself requires the proposed similar acts to
    be clearly identified. It also requires the purpose of using similar acts, that
    is, the issue to which evidence of the acts is to be applied and the inferences
    sought to be drawn from that evidence, to be clearly identified. The analysis
    of probative value (including similarity and linkage) and prejudice takes place
    through that lens.

(d)

The Test Applies in Judge-Alone, Multi-Count Cases

[38]

These
    principles are not affected by the fact that a case is being tried without a
    jury, nor by the fact that in a multi-count situation, the issue is not whether
    evidence will be heard at all, but to what use it will be put. In
MacCormack
,
    Watt J.A. noted that the test for the admissibility of similar fact
    evidence offered to prove identity is the same whether the alleged similar acts
    are extrinsic to counts in the indictment or contained in other counts of the
    same indictment: at para. 56. To be sure, some of the factors in the analysis
    relevant to an assessment of prejudice may have an attenuated influence in
    cases where the similar acts are restricted to other counts in a multi-count
    indictment, especially where the case is tried by a judge sitting alone. In
    such cases, the risks of moral prejudice and reasoning prejudice are significantly
    diminished:
MacCormack
, at paras. 56, 68-69;
T.B.
, at paras.
    26-28, 31. Excluding the similar fact evidence will not prevent the judge from
    hearing it, and the concern that a judge will convict on the basis of the
    accuseds bad character is much less significant than the concern that a jury
    will do so:
T.B.
, at para. 33. Further, the only time added to the
    trial is that needed for the argument on admissibility at the end:
MacCormack
,
    at para. 69.

[39]

Nonetheless,
    even in a judge-alone, multi-count indictment case, the test applies and must
    be met. Even though some of the factors in the test may be attenuated, they are
    still to be considered.

[40]

In
    my view, these comments extend to cases where similar fact evidence is offered
    on issues other than identity. Indeed, this court applied parts of the
Handy
analysis in
T.B.
, a case in which the alleged similar acts were
    contained in other counts of the same indictment and the evidence went to supporting
    the complainants allegations (not to identity).

[41]

I
    now turn to the application of those principles.

(2)

The Trial Judge Erred by Using Similar Fact Evidence Without a Crown Request
    for Such Use

[42]

In
    my view, it was an error for the trial judge in this case to use evidence
    across counts as similar fact evidence without a request of any kind for that
    use having been made by the Crown. As the preceding discussion shows, such
    evidence was presumptively inadmissible and there was an onus on the prosecutor
    to satisfy the trial judge that it could be used across counts. The Crown made
    no request for similar fact treatment in any form and thus did not attempt to meet
    the onus it would have had; the defence had no opportunity to respond.

[43]

The
    fact that the similar fact evidence related to other counts in the indictment and
    the trial was by judge alone  matters that attenuated any prejudice arising
    from the admission of the similar fact evidence  is not determinative when the
    Crown has not asked for similar fact treatment. To hold otherwise would be to
    do away with the presumptive inadmissibility of such evidence and the onus on
    the prosecutor to overcome it, and to replace it with a rule that such evidence
    is admissible in a judge-alone, multi-count case. The law does not permit that
    conclusion:
R. v. Handy
, at para. 55,
MacCormack
, at para. 48,
R. v. Arp
, at para. 40.

[44]

I do
    not agree with the proposition of the Crown on appeal that the use of similar
    fact evidence without any request by the Crown is authorized by this Courts
    decision in
T.B.L.
In
T.B.L.
, a multi-count indictment case,
    the Crown did make a request: it asked for a jury instruction about the use the
    jury could make of evidence on other counts as similar facts at the pre-charge
    conference. The defence contention in that case was that the request should
    have been made before the evidence was led. It was in that context that this court
    held that the defence had not been prejudiced by the timing of the Crowns request.
    The defence should have expected such a request to have been made, and since
    the evidence was of other counts, a separate admissibility hearing when the
    evidence was led had not been required. All that was required was a
    determination by the trial judge at the time of the pre-charge conference that
    it would be appropriate for the jury to consider certain evidence from certain counts
    on others: at paras. 7-8.

[45]

T.B.L.
does not assist the Crown here. This case does not involve an issue of the timing
    of a request by the Crown that the defence should have anticipated, or of any
    prejudice arising from that timing. Here, unlike in
T.B.L.
, no request
    was ever made; the defence had no opportunity to respond to any proposed use of
    evidence across counts as similar fact evidence, as the defence in
T.B.L.
did when it was raised at the pre-charge conference.

[46]

Nor
    is this case like
Graham
. In
Graham
, this court upheld a
    conviction where the trial judge had used extrinsic evidence and count-to-count
    evidence of specific acts without the Crown having sought a formal ruling on
    the use of this evidence. However, the defence at trial did not object to the
    introduction of the extrinsic evidence, and defence counsel had been alerted
    and given the opportunity to respond to the use of evidence across counts
    because the Crown specifically relied on propensity reasoning in closing
    submissions: at para. 32. Despite that opportunity the defence did not object
    to the Crowns reliance on evidence across counts. Although the court stated
    that it would have been better for the trial judge to have held a
voir dire
and heard submissions concerning the admissibility and use of the evidence,
    there had been no procedural unfairness and the similar fact evidence was
    admissible and properly used. The failure of the defence to object when it was
    alerted and given the opportunity to respond was critical to the courts
    decision.

[47]

In
    this case, we have not been pointed to anything that would have alerted the
    defence to the cross-count use the trial judge proposed to make of the
    evidence, nor of anything that would have given the defence an opportunity to
    respond. There cannot have been a meaningful failure to object in such
    circumstances. And, as I explain below, the brief consideration the trial judge
    gave to the issue was flawed.

(3)

The Trial Judge Erred in the Way He Considered and Used Evidence Across
    Counts as Similar Fact Evidence

[48]

I
    agree with the appellant that the absence of a Crown request provides important
    context for a consideration of the trial judges decision to admit similar fact
    evidence. Normally, a decision to admit such evidence is entitled to
    substantial deference:
Handy
, at para. 153. However, the absence of a
    Crown request, and an admissibility analysis made without submissions from the
    parties are, in my view, circumstances that remove the basis for such
    deference.

[49]

The
    trial judges consideration of probative value (namely, similarity and linkage)
    and of prejudice did not have the benefit of a clear articulation by the Crown
    of the exact acts claimed to be similar, the issue on which evidence of those
    similar acts was to be used, and the inferences the evidence was said to
    support. It also did not have the benefit of any submissions by the defence. As
    set out above, both an identification of the acts said to be similar, and a
    clear articulation of the purpose for which the similar fact evidence is to be
    used are central to the admissibility inquiry. They determine and delimit the
    acceptable use to which admissible similar fact evidence may be put.

[50]

The
    trial judge said he was using evidence across counts. The statement is not
    itself clear as to whether he identified all of the evidence on each count as
    probative so as to be useable on every other count, or only certain evidence (for
    example, the existence of a stolen vehicle and/or part in each count). The
    trial judge then stated that he would use similar fact evidence on the issue of
    knowledge, to support the inference that it is less probable that one would not
    know about a large amount of stolen cars and parts on their property than a
    small amount. This suggests that he was referring to the presence of stolen
    vehicles and parts on the three properties as the facts that were similar
    between the counts, in support of a specific inference. But whatever the trial
    judge may have meant to identify as the similar acts, it was neither requested
    by the Crown nor an issue on which the defence had an opportunity to make
    submissions.

[51]

Moreover,
    despite describing the issue and inference for which he intended to use the
    cross-count evidence, the trial judge did not limit his use to that issue
.
In
    my view, the Crowns own description on appeal of the use to which the trial
    judge put the evidence across counts better captures the way it was used. Namely,
    it was used to support an inference that the appellant was engaged in a
    business of dealing in stolen vehicles and parts, which had a certain method of
    operating, including procuring wrecks, removing VINs from them and attaching
    them to stolen vehicles.

[52]

Two problems
    are revealed by the use of the evidence across counts for that purpose. First,
    the similar acts seemingly identified by the trial judge in his admissibility analysis
    were expanded beyond the presence of stolen vehicles and parts referred to in
    the counts to include evidence about the way in which the vehicles or parts in
    various counts appeared, what had been done to them, by whom and for what
    purpose. Second, the trial judge went beyond the issue and inference he stated in
    his admissibility analysis to draw a different inference. The trial judge did
    not indicate how he considered the probative value and prejudice aspects of the
    admissibility inquiry for that expanded set of acts or for that different purpose
    and different inference, let alone how he satisfied himself the test was met. I
    therefore agree with the appellant that the trial judges consideration of the
    elements of the admissibility test was flawed.

[53]

As
    my discussion below will illustrate, these errors, namely the use of evidence
    across counts as similar fact evidence without any request, and the use of
    evidence for a purpose beyond that analysed by the trial judge when he
    considered admissibility, affected the trial judges conclusions on each count
    on which he recorded a conviction.

(4)

There are Insufficient Findings Independent of the Trial Judges Errors
    in his Use of Evidence Across Counts for the Convictions to Stand

[54]

I do
    not accept the Crowns contention that the convictions can stand because there
    were sufficient findings made by the trial judge unrelated to his use of
    similar fact evidence. The trial judges reliance on evidence across counts
    cannot be untangled from his findings made only on evidence given in respect of
    a specific count. This is clear from his statement near the beginning of his
    reasons that he would use evidence across counts, and is buttressed by the
    examples below.

[55]

The
    trial judge reached his conclusions on 34 of the counts together in five
    paragraphs. Those counts dealt with possession of stolen vehicles found on the
    Seneca Steel property, a stolen vehicle and trailer found on the Kucan
    property, and stolen parts found on the Kucan and Auto Enterprises properties. The
    trial judge did not describe how the evidence on any individual count satisfied
    him of the appellants guilt on that count. Rather, he reached his conclusions about
    these counts on the evidence he applied across the counts. He referred not only
    to the sheer quantity of stolen property, but also to how the cross-count
    evidence led him to infer that the appellant ran a stolen car and parts
    business with a particular way of operating. The following statements made in
    those five paragraphs illustrate this:

Given the evidentiary connections, the [appellants] detailed
    knowledge of his own business and the significant number of stolen parts from
    high end vehicles stacked like cordwood throughout the Kucan property I
    conclude that the [appellant] knew about all of the stolen property at [the
    Kucan property]. I am also convinced that he knew about the two vehicles at the
    Seneca Steel property, which are also linked to [the Auto Enterprises property]
    in the evidence, as I have set out

Property was repaired at [the Auto Enterprises]. Legitimate and
    stolen inventory was stored at [Auto Enterprises], with the overflow going to
    the Kucan propertyThe number of parts from high end, recently stolen vehicles
    at [the Kucan property] was strikingThe shop at the Kucan property was in an
    obvious state of disuse. All these nice new cars had to be chopped up at [Auto
    Enterprises]. Everybody must have noticed.

Procuring stolen vehicles and procuring wrecks to provide false
    VINs to disguise the stolen vehicles was a key part of the businessthe
    absolute number [of stolen parts] present here, when taken with the documentary
    evidence found in the office, make the case that [the appellant] was
    deliberately dealing in stolen goods.

[56]

Even
    when the trial judge analysed a count by itself, his analysis cannot be
    divorced from the conclusions he drew from using evidence across counts. Count 1
    related to a stolen truck brought to the Auto Enterprises property, which the
    appellant testified he thought had been brought there to be repaired. It was
    tracked and seized by the police within a day of its arrival at Auto
    Enterprises. The trial judge did refer to certain evidence specific to that
    count, such as a smashed GPS monitor on the truck, which he considered to be an
    obvious indication that it was stolen. But he did not limit himself to that
    sort of evidence. He went on to say that:

This truck needed to be taken to a receiver of stolen goods,
    not a legitimate repair shop. The vehicle needed to be re-VINned not
    repaired...Of course the accused knew that this truck had just been stolen.

[57]

When
    read with the trial judges finding from evidence on other counts that
    procuring stolen vehicles and providing false VINs to disguise them was a key
    part of the appellants business, the import of the above statement is clear. The
    trial judge used his conclusions from evidence across counts in his analysis of
    Count 1 (a count which did not involve a vehicle with a missing or altered
    VIN) to determine that the accused knew the truck was stolen. His statement in
    the course of his analysis on this count, that the circumstantial evidence
    that [the appellant] was deliberately running a stolen car and parts operation
    is compelling, makes that clear.

[58]

I
    reach the same conclusion with respect to the trial judges brief analysis of the
    other counts. He did not only analyse specific events relating to each count,
    but came to a verdict based on the totality of the evidence on all counts. When
    convicting on Count 5, which dealt with a stolen vehicle found on the Auto
    Enterprises property, he said: 
as with all aspects of
    Auto Enterprises business
, [the appellant] knew about the stolen
    property (emphasis added).

[59]

When
    convicting on Counts 6, 7, 8, 9 and 11, three of which were stolen property
    counts and two of which were fraud counts, he stated:

When [the appellant] needed some dirty work done,
he often used [a business associate]
...
[the appellant] knew about the stolen parts, or stolen vehicle,
    as the case may

be
...I have no doubt that
    the accused knew about the stolen parts, whoever installed them. [Emphasis
    added.]

[60]

When
    convicting on Count 10, a stolen property charge involving a vehicle at the
    Auto Enterprises property, he stated that [t]he stolen vehicle was in the
    possession of the accused and
again
I have no
    doubt that he knew just where it came from (emphasis added).

[61]

These
    statements, taken together with the trial judges earlier statement that he
    would use evidence across counts, do not support the view that the trial
    judges reasons can be parsed as the Crown contends. His conclusion that the
    appellant was running a stolen car and parts operation with a particular method
    of operation, arrived at by applying evidence across counts, appears to be an important
    part of the foundation for his conclusions on each count.

[62]

The
    fact that the trial judge acquitted the appellant on three counts does not
    undermine this conclusion. He acquitted on one count where there was
    insufficient evidence that the item was stolen. He acquitted on another where
    evidence was lacking that the item was ever on the appellants business
    premises. And he acquitted on one fraud count because he was not satisfied that
    the purchaser of a vehicle with stolen parts had been deceived. These were
    issues unrelated to his use of similar fact evidence.

(5)

The Curative Proviso Cannot be Applied

[63]

The Crown
    also contends that any errors made by the trial judge in his use of similar
    fact evidence can be cured. I do not agree that the curative proviso in s.686
    (1) (b) (iii) of the Code can be invoked in this case. The relevant principles
    were recently set out in
R v. R.V
., 2019 SCC 41. The majority stated,
    at para 85, The curative proviso set out in s. 686(1) (b)(iii) may be applied
    where there is no reasonable possibility that the verdict would have been
    different had the error . . . not been made...Applying the curative proviso is
    appropriate in two circumstances: (i) where the error is harmless or trivial;
    or (ii) where the evidence is so overwhelming that the trier of fact would
    inevitably convict (internal citations omitted).

[64]

In my
    view the error here was neither harmless nor trivial. The trial judge ought to
    have determined each count on the basis of the evidence that was led related to
    that count. Instead he decided each count on the basis of evidence related to
    that count and to 46 other counts. He failed to treat evidence that was
    presumptively inadmissible as such; instead he drew important conclusions from
    it and applied them to each count on which he recorded a conviction. Nor, in my
    view, can we be assured that the similar fact inferences drawn by the trial
    judge would have been available to him had a proper inquiry been undertaken. 
    The range of evidence, the number and variation of the counts, and the absence
    of complete argument on the issue prevents us from making that determination.

[65]

Can
    it nonetheless be said that the evidence is so overwhelming that the trier of
    fact would inevitably have convicted? Naturally, in making this determination
    an appeal court must confine itself to the admissible evidence. Since we cannot
    resolve the admissibility of the similar fact evidence inferences, those
    inferences cannot be relied upon in assessing the inevitability of conviction.
    Without those inferences, the Crown cannot demonstrate that the case on each
    count was so overwhelming that the trier of fact would inevitably have
    convicted.

E.

Conclusion

[66]

In
    my view, the trial judges errors in using evidence across counts require the convictions
    to be set aside.

[67]

I
    would allow the appeal, set aside the convictions and direct a new trial.

Released: DP August 9, 2019

B. Zarnett J.A.
I agree. K. Feldman J.A.
I agree. David M. Paciocco J.A.





[1]
He found the disclosure in relation to that charge was insufficient.



[2]

The appellant was sentenced in September 2015 to four years
    imprisonment. He abandoned his sentence appeal.



[3]

Credibility assessments are not subject to this restriction: Paciocco
    & Stuesser, at p. 89.



[4]

I use the term admissibility inquiry to refer broadly to a
    determination of whether evidence of extrinsic discreditable conduct will be
    admitted, or whether already-admitted evidence relating to one count can be
    used to prove another count. Where evidence of extrinsic misconduct is
    involved, the term admissibility inquiry is particularly apt, since the issue
    is not only how the evidence will be used, but also whether it can be heard at
    all. Where the issue is whether the evidence on one count is properly taken
    into account (i.e. is admissible) in relation to another, the inquiry will be
    not necessarily take place at the time the evidence is proffered, but may take
    place later, when the use of the evidence already admitted on one count is
    being considered in relation to another.



[5]
Failing to conduct an admissibility inquiry is an error of law. There may be
    circumstances in which such an error is not fatal on appellate review:
Sopinka,
    Lederman & Bryant
, at § 11 .163, citing
R. v. Graham
, 2015 ONCA
    113, discussed later in these reasons.


