



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Leduc, 2021 ONCA 843

DATE: 20211125

DOCKET: C62285

Fairburn A.C.J.O., MacPherson
    and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marc Leduc

Appellant

Howard L. Krongold, for the appellant

Grace Choi, for the respondent

Heard: November 19, 2021

On appeal from the convictions entered by
    Justice Hugh R. McLean of the Superior Court of Justice, sitting with a jury, on
    June 2, 2016.

REASONS FOR DECISION

[1]

This is an appeal from two convictions for first-degree
    murder. The appeal was dismissed with reasons to follow. These are our reasons.

[2]

Two women were murdered about three years apart.
    They were vulnerable sex workers who lived and worked in the Ottawa area. The
    circumstances surrounding the murders were highly similar. Both victims were
    found dead in areas frequented by the public. Both victims showed signs of
    significant and similar struggle, resulting in similar injuries to their face
    and scalp areas. Both victims had foreign objects inserted into their bodies
    while they were still alive  a plastic bag in one case and a tree branch in
    the other. Both victims were found with the foreign objects left inside of
    them. Both victims were found naked from the waist down. Both victims were
    found with their bras lifted above their breasts. Both victims had suffered fresh
    injuries to their vaginal and pubic areas. And both victims were asphyxiated by
    compression to their necks.

[3]

The appellants DNA was found on both womens
    bodies. He was charged and tried for both murders in a single trial. Prior to
    the trial, the appellant brought an application under s. 591(3)(a) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, which permits the trial judge to sever the counts
    where the interests of justice so require. The trial judge considered the
    relevant factors and gave multiple reasons for dismissing the application, the
    most significant of which was the striking similarity between the two events,
    which made it likely that the Crowns similar act evidence application would
    be allowed later in the trial: see
R. v. Last
, 2009 SCC 45, [2009] 3
    S.C.R. 146, at para. 18.

[4]

At trial, the elements of first-degree murder
    were not in dispute. The only real issue for the jurys consideration was
    whether the Crown had proven the appellants identity as the killer beyond a
    reasonable doubt. To help satisfy its burden, the Crown successfully brought a
    similar act evidence application, permitting the jury to consider the evidence of
    each womans murder across counts.

[5]

The appellant raises three issues on appeal. Since
    the appellant maintains that the first two issues are inextricably linked, they
    will be considered together.

[6]

First, the appellant argues that the trial judge
    erred in admitting the similar act evidence across counts. In specific, the trial
    judge is said to have misunderstood the purpose for admitting the evidence
    across counts, a misunderstanding that caused him to apply an erroneously
    diluted standard for admission. Second, and relatedly, the appellant argues
    that this first error pervaded the pre-trial severance application, which was primarily
    denied because of the likely success of the later similar act application.

[7]

The trial judge reasoned that the purpose for
    admitting the evidence across counts was to rebut the possibility that the
    defence would suggest to the jury that it was sheer coincidence that the
    appellants DNA was found on both victims bodies. The trial judge concluded that
    the circumstances surrounding the two murders held such striking similarity
    that, considered across counts, the evidence would work to rebut the suggestion
    of coincidence.

[8]

The appellant contends that, whether or not the
    evidence could be characterized as rebutting coincidence, the cross-count evidence
    was really being tendered to prove the appellants identity as the murderer in
    both cases. By failing to appreciate that the similar act evidence was directed
    at proving identity, rather than disproving coincidence, the trial judge is
    said to have failed to apply the correct admissibility test.

[9]

The appellant further contends that, had the
    trial judge approached the matter correctly, he would have appreciated  as
    this court should  that the evidence fell short of the high degree of
    similarity required when the evidence is admitted across counts to prove
    identity.

[10]

We do not agree that the trial judge applied the
    wrong admissibility test or that the evidence fell short of the required degree
    of similarity.

[11]

When similar act evidence is used to prove
    identity, the law insists upon a particularly high degree of similarity between
    the acts, one that makes it likely that they were committed by the same person:
R. v. Arp
, [1998] 3 S.C.R. 339, at para. 50. The required degree of
    similarity has been described differently over the years, including that the
    acts are strikingly similar in nature:
R. v. Durant
, 2019 ONCA 74,
    144 O.R. (3d) 465, at paras. 89, 98. Where the purportedly similar acts meet
    that standard, the possibility that the accused would repeatedly be implicated
     purely as a matter of coincidence is greatly reduced:
Arp
, at para.
    43.

[12]

Regardless of whether the trial judge described
    the issue in dispute as one of proving identity or disproving coincidence, he
    found that there was a striking similarity between the murders. In the trial
    judges ruling on the pre-trial severance application, he observed that, consider[ing]
    all of the evidence, it would appear there is a striking similarity between the
    two events. He explained his conclusion in some detail. In particular, he
    relied on both victims autopsy reports and the testimony of one victims
    medical examiner, all of which demonstrated the rarity of strangulation deaths,
    objects placed in victims bodies, and sexually motivated homicides.

[13]

The trial judges view did not change after the
    Crowns case had been called and he was asked to rule on the cross-count similar
    act evidence application. In that ruling, the trial judge considered
Arp
and adopted his earlier conclusion that the two murders were strikingly similar
    in nature.

[14]

While the appellant points to some dissimilarities
    between the murders, such as where the foreign objects were found within the
    bodies of the deceased women, it is not for this court to redo the trial
    judges analysis. In light of the many strong similarities canvassed earlier in
    these reasons, the trial judges conclusion was entirely reasonable. His
    ultimate assessment of the probative value and prejudicial effect of the
    evidence, and where the balance lay as between them, involved an exercise of
    judicial discretion and, correspondingly, significant deference on appellate
    review:
R. v. Doodnaught
, 2017 ONCA 781, 358 C.C.C. (3d) 250, at
    para. 153, referring to
R. v. Shearing
, 2002 SCC 58, [2002] 3 S.C.R.
    33, at para. 73.

[15]

As for the impugned severance ruling, it was
    largely based upon the view that the similar act application would likely
    succeed. The appellant does not suggest otherwise. In light of the conclusion
    we have reached on the similar act ruling, we see no basis to interfere with
    the trial judges severance ruling.

[16]

Third, the appellant argues that, even if this
    court finds that the similar act evidence was properly admissible across
    counts, the jury was incorrectly instructed on how to approach that evidence.
    The jury was told that they could use the evidence across counts only for one
    purpose  to disprove that the two incidents were merely the result of
    coincidence, but absolutely for no other purpose.

[17]

The jury was instructed that, before using the
    evidence to disprove coincidence, they had to first make certain findings,
    specifically whether there was a distinct pattern of conduct by the
    appellant, in which case they might find that it defies coincidence. The
    trial judge walked the jury through the similarities and differences between
    the murders. He carefully warned them to avoid improper propensity reasoning. He
    then reminded the jury that they could only use the evidence to disprove the possible
    coincidence if there was a distinctive pattern of conduct which suggested that
    the two murders were similar events. If the jury was unable to find such a
    distinctive pattern of conduct, they were instructed to not use the evidence
    to disprove a coincidence nor for any other purpose.

[18]

The appellant argues that this instruction fell
    short of the mark. It is said to have failed to bring home to the jury that the
    evidence was available for their consideration to prove the identity of the
    perpetrator. Given that it was admitted for purposes of identity, the jury
    should have been instructed that there was only one way in which the evidence
    from one count could be used to reach a verdict on the other count: if the way
    in which the offences charged were committed is so similar that the same person
    likely committed both (all) of them: D. Watt,
Watt's Manual of Criminal
    Jury Instructions
, 2nd ed. (Toronto: Carswell, 2015), Final 28-B (Evidence
    of Other Count(s) Similar Acts to Prove Identity of Perpetrator).

[19]

Respectfully, the difficulty with this
    submission is that it conflicts with the defence position at trial. The trial
    Crown asked the trial judge to provide the classic jury instruction on identity
    as just described, but defence counsel objected. Indeed, defence counsel actively
    dissuaded the trial judge from giving such an instruction, explaining that it
    was not the appropriate charge to give, and that the jury should be
    instructed about rebutting the defence of innocent association [with the
    murdered women] which is not the same thing as to prove identity. This
    position further accorded with defence counsels closing address, where the
    jury was told, Weve all seen in our lives how coincidences can and do
    happen. Now, on appeal, the appellant says that the very instruction resisted
    at trial by experienced defence counsel should have been given.

[20]

Therefore, this is not simply a case where the
    defence failed to object to a charge. Rather, this is a case where defence
    counsel asked that a charge not be given, the trial judge acceded to that
    request, and now, on appeal, the absence of that charge is said to constitute
    reversible error. In our view, this position cannot succeed.

[21]

Aside from the fact that the trial judge acceded
    to the request made by defence counsel, the language emphasizing a distinctive
    pattern of conduct was adequate to the task.

[22]

In our view, the factual circumstances of this
    case meant that the jurys decision would not have turned on a distinction
    between the wording used (distinctive pattern of conduct) and the wording that
    the appellant now says should have been used (so similar that the same person
    likely committed both). Indeed, in the circumstances of this case, where the
    appellants DNA was found on both victims bodies, the distinctive pattern of
    conduct expression may well have inured to the appellants benefit. In any
    event, given the similarities between the murders, there was a distinctive pattern
    of conduct that demonstrated that they were likely committed by the same
    person. In these circumstances, the wording utilized in the charge was adequate
    to the task.

[23]

The appeal is dismissed.

Fairburn A.C.J.O.

J.C. MacPherson J.A.

M.L. Benotto J.A.


