



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jevane Fuller, 2021 ONCA 888

DATE: 20211214

DOCKET: C68469

Fairburn A.C.J.O., Doherty and
    Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jevane Fuller

Appellant

Paul Calarco, for the appellant

Gerald Brienza, for the respondent

Heard: October 7, 2021 by
    video conference

On appeal from the convictions entered
    on May 13, 2020, and the sentences imposed on June 18, 2020, by Justice J.I.
    Bourgeois of the Ontario Court of Justice.

Doherty J.A.:

overview

[1]

The Crown alleged that the appellant broke into
    a number of homes in the City of Ottawa between October 30, 2018 and April
    2019. He ultimately faced a 34-count information, alleging 28 separate
    break-ins. The appellant was convicted of 24 break and enters and one count of attempted
    break and enter. He was acquitted on two of the break and enter charges and
    convicted of the included offence of possession of stolen property on one of
    the break-in charges.

[2]

Two of the break-ins led to additional charges
    against the appellant. In both cases, residents returned home during the break
    and enter. In one instance, the homeowner was assaulted and tied up, leading to
    convictions on charges of assault, confinement and robbery, as well as breaking
    and entering (counts 9-12). The assault, confinement and robbery charges are
    the subject of a separate ground of appeal. I will refer to them as the Black
    Sage Crescent charges. On the second occasion when two residents interrupted
    the break-in, the confrontation led to additional convictions on charges of threatening
    and possession of burglar tools (counts 16-18).

[3]

The appellant, who has a serious criminal record
    and was on parole when he committed these offences, received a total sentence
    of 15 years.

[4]

The appellant appeals conviction, seeks leave to
    appeal sentence and, if leave is granted, appeals his sentence.

[5]

The appellant raises three issues on the
    conviction appeal:

·

Did the trial judge fail to properly assess the evidence
    of the Crown witness, Elias Zidan?

·

Did the trial judge err in admitting evidence on
    some counts as similar act evidence on other counts in the information?

·

Did the trial judge err in admitting evidence of
    prior robberies committed by the appellant as similar act evidence in respect
    of the Black Sage Crescent charges?

[6]

On the sentence appeal, the appellant
    acknowledges that a lengthy penitentiary term was necessary but argues the
    trial judge failed to consider the totality principle. He submits a 10-year
    sentence would have been appropriate. The appellant also argues that the trial
    judge erred in imposing a victim fine surcharge. The Crown concedes this point
    in light of
R. v. Boudreault
, 2018 SCC 58, [2018] 3 S.C.R. 599.

[7]

For the reasons that follow, I would dismiss the
    appeal except for the removal of the victim fine surcharge.

the facts

[8]

On the Crowns theory, the appellant was a
    virtual one-man crime wave in the City of Ottawa in the fall and winter of
    2018-2019. He was convicted of 24 break-ins that occurred in different
    residential areas in Ottawa. Some of the break-ins occurred on the same day and
    in the same neighbourhood.

[9]

In the vast majority of cases, there was no one
    home when the burglar entered. The burglar gained entry by breaking a window on
    or near the front door, reaching through the broken window and unlocking the
    door. Almost all of the break-ins occurred during the day and on a weekday. In
    many cases, the burglar stole jewellery, electronics, cameras or guitars. In
    some cases, other things were taken, including cash.

[10]

The Crown relied on the following evidence:

·

When the appellant was arrested on April 16,
    2019, he was in possession (personal or constructive) of property stolen in
    seven of the break-ins. Those break-ins occurred between February 2, 2019 and April
    8, 2019.

·

Elias Zidan, the owner of a jewellery store
    called Nouras, purchased property, including jewellery, cameras and
    electronics, from the appellant between February and April 2019. Some of that property
    was identified as coming from 13 of the break-ins which occurred between
    October 30, 2018 and April 8, 2019.

·

On three of the break-in charges (counts 32, 33,
    and 34), the appellant was found in possession of property stolen during those break-ins
    and Mr. Zidan also identified property sold to him by the appellant that came
    from the same three break-ins.

·

A white four-door Honda Civic with a sunroof,
    alloyed wheel rims and a black scuff mark on the passenger side door was seen
    at or very near the scene of several of the break-ins. In some cases, video
    surveillance or eyewitness evidence directly linked the perpetrator of the
    break and enter to the white Honda Civic.

·

The white Honda Civic, seen at the scene of
    several of the break and enters, matched the description of the vehicle owned
    by the appellants girlfriend. The appellant regularly drove that car.

·

A witness, who encountered the burglar in his
    home and struggled with him, saw the burglar run to a white Honda Civic and
    drive away (count 16-18).

·

Video taken at or near the scene of several of
    the break-ins and descriptions of the perpetrator provided by witnesses were
    consistent in their description of the colour, age, accent, size and sex of the
    perpetrator, as well as the clothing worn by the perpetrator. On some
    occasions, the perpetrator was carrying, what appeared to be, the same bag.

·

Clothing matching that worn by the perpetrator in
    a break-in in March 2019 was seized at the appellants apartment after his
    arrest on April 16.

·

The appellants cellphone pinged off cellphone
    towers within two or three kilometres of almost all of the break-ins during the
    timeframe in which the break-ins occurred.
[1]

[11]

The appellant did not testify. The defence
    called a witness, who claimed to have committed all of the break-ins. His
    evidence was rejected by the trial judge. The appellant does not allege error
    in the rejection of that evidence, and I need not review that evidence in these
    reasons.

rulings at trial

[12]

At trial, the Crown submitted that evidence
    pertaining to each of the break and enter counts should be admissible as
    similar act evidence on the other break and enter counts. The Crown argued the
    evidence was admissible on the issue of the identity of the burglar.

[13]

The trial judge allowed the application in part.
    She held that evidence tendered on 12 of the break and enter counts was
    admissible as count-to-count similar act evidence in respect of the other break
    and enter counts in the group of 12 (counts 1, 2, 3, 5, 6, 7, 8, 12, 15, 17, 29
    and 34). The appellant challenges that ruling.

[14]

The Crown also sought to introduce evidence of five
    home invasion robberies committed by the appellant in Toronto in 2011. The
    appellant had pled guilty to those charges in 2012. The Crown argued the
    circumstances of those offences, as set out in the sentencing reasons of the trial
    judge, were admissible as similar act evidence going to the identity of the person
    who assaulted, confined and robbed the victim in the Black Sage Crescent break-in
    (counts 9-11). The trial judge ruled the evidence admissible on those counts.
    The appellant challenges that ruling.

[15]

Before examining each of the appellants arguments,
    it is helpful to identify the convictions that are potentially affected by each
    argument. As indicated above, the trial judge ruled that the evidence of 12 of
    the break-ins was admissible as count-to-count similar act evidence in relation
    to other break-ins in that group of 12. However, with respect to two of those
    break-ins (counts 5 and 34), the appellant was also found in possession of
    property stolen during those break-ins. The appellant acknowledges that those convictions
    stand regardless of the correctness of the similar act ruling. The appellant
    was also acquitted on one of the counts from the group of 12 (count 8). Consequently,
    the ruling on the count-to-count similar act evidence application potentially
    affects the convictions on 9 of the break-ins (counts 1, 2, 3, 6, 7, 12, 15, 17
    and 29).

[16]

The trial judges ruling holding the evidence of
    the Toronto robberies admissible as similar act evidence affected only the
    verdicts on the Black Sage Crescent charges arising out of the assault,
    confinement and robbery of the victim (counts 9-11). The trial judge did not
    rely on the evidence pertaining to the Toronto robberies to find that the
    appellant committed the break-in at the Black Sage Crescent residence (count
    12). She did, however, rely on the count-to-count similar act evidence in concluding
    that the appellant committed the Black Sage Crescent break-in.

[17]

The trial judge also convicted the appellant of
    11 break-ins in respect of which she did not admit cross-count similar act
    evidence (counts 14, 19, 20, 21, 23, 25, 26, 27, 30, 32 and 33). On each of
    these charges, the trial judge relied on Mr. Zidans evidence that the
    appellant had sold him property stolen during that break-in. On two of those
    counts, the Crown also led evidence putting the appellant in possession of
    property stolen during the break-ins (counts 32 and 33). The appellant accepts
    that even if the trial judge erred in her treatment of Mr. Zidans evidence,
    the convictions on those two counts must stand. The convictions on the nine remaining
    charges stand or fall on the merits of the appellants argument concerning the
    treatment of Mr. Zidans evidence by the trial judge.

the grounds of appeal

A.

the trial judges treatment of mr.
Zidan
s evidence

[18]

The appellant submits
    the trial judge made little reference to Mr. Zidans evidence in her reasons
    and did not analyze the reliability of that evidence or Mr. Zidans
    credibility as a witness. The appellant further contends the trial judge
    ignored material uncertainties in Mr. Zidans evidence and failed to appreciate
    that on Mr. Zidans evidence, he was knowingly purchasing stolen property from
    the appellant and was therefore an accomplice. The appellant argues that it was
    incumbent on the trial judge to give herself a clear warning against relying on
    Mr. Zidans evidence in the absence of corroboration. In other words, the
    appellant submits the trial judge was required to give herself a 
Vetrovec

    caution: see
R. v. Vetrovec
, [1982] 1 S.C.R. 811.

[19]

I cannot accept the appellants arguments. First
    of all, a judge conducting a judge-alone trial is not obliged to give herself a
    
Vetrovec
 caution with respect to witnesses who could well attract
    that caution in a jury case. The 
Vetrovec
 caution is designed to
    educate jurors about the risks inherent in accepting the evidence of certain
    kinds of witnesses and the need to carefully examine the entire trial record
    for potential supporting evidence. Trial judges are well aware of those risks
    and the need to look for supporting evidence:
R. v. Snyder
, 2011 ONCA
    445, 273 C.C.C. (3d) 211, at paras. 23-25;
R. v. KRR
, 2020 ABCA 475, 398
    C.C.C. (3d) 259, at paras. 56-58.

[20]

Trial judges must, however, consider a witnesss
    involvement in the criminal activity in issue. The trial judge appreciated that
    Mr. Zidan may, at some point in his dealings with the appellant, have turned a
    blind eye to the provenance of the items being sold to him by the appellant.
    Although the trial judge did not go so far as to find as a fact that Mr.
Zidan
knew the
    items were stolen, she approached his evidence on the basis that there was a
    real possibility he was wilfully blind to the origin of at least some of the
    property.

[21]

It was the trial judges job to decide what Mr.
    Zidan did or did not know about the source of the property sold to him by the
    appellant and to take that assessment into account when weighing Mr. Zidans
    credibility. The trial judge did that.

[22]

I also cannot agree the trial judge did not
    adequately address the substance of Mr.
Zidan
s evidence. She referred
    to different parts of his testimony as they related to different counts when
    she was reviewing each count. She appreciated that Mr.
Zidan
admitted some
    uncertainty as to whether certain property came to him from the appellant. That
    uncertainty contributed to the appellants acquittal on one count (count 31).

[23]

The trial judge acknowledged that much of Mr.
Zidan
s evidence
    was unconfirmed, in that no one else testified to the transactions between the
    appellant and Mr.
Zidan
. There was, however, an important exception to the absence of any confirmatory
    evidence. As the trial judge noted, on three of the break-in counts (counts 32,
    33 and 34), the appellant was found in possession of property obtained from those
    break-ins after his arrest. His possession of items stolen in those break-ins offered
    potentially strong confirmation of Mr.
Zidan
s evidence that it was the
    appellant who sold him other property obtained in those same three break-ins.

[24]

I see no error in the trial judges assessment
    of Mr.
Zidan
s evidence. The break and enter charges, which rely in part on his
    testimony but do not depend on cross-count similar act evidence, should stand.

B.

the trial judges ruling on the cross-count similar
    act evidence

[25]

In her ruling, the trial judge began with a
    thorough review of the controlling caselaw. She identified several similarities
    in the time, place and manner in which the break-ins were committed. These
    included the close proximity in time and place of many of the break-ins, the
    relatively brief time period over which all of the break-ins occurred, the
    character of the neighbourhoods in which the break-ins occurred, the time of day
    and the days of the week on which the break-ins occurred, the manner in which
    the burglar gained entry to the homes, and the nature of the property stolen. The
    trial judge was, however, not satisfied that what she described as these
    general commonalities were enough to render evidence on one of the break and
    enter counts admissible as evidence of identity on the other break and enter counts.

[26]

The trial judge went on to examine the rest of
    the evidence relating to the break-ins. On the 12 break and enters which she
    held were admissible as count-to-count similar act evidence, the trial judge
    identified two additional features of the evidence which satisfied her that the
    evidence on each count was sufficiently probative of the identity of the
    burglar on the other counts to warrant its admission as similar act evidence.

[27]

First, the trial judge referred to the evidence pertaining
    to several of the break-ins linking the perpetrator to a four-door white Honda
    Civic with certain distinctive features. Second, the trial judge referred to
    the video surveillance and eyewitness evidence describing the perpetrator of several
    of the break-ins in terms suggesting the perpetrator was the same person. Those
    descriptions related not only to the physical appearance of the perpetrator,
    but also the clothing worn by him and the bag the perpetrator was carrying when
    he committed some of the break-ins.

[28]

On some of the 12 break-ins, which the trial
    judge determined were admissible as count-to-count similar act evidence, there
    was evidence pertaining to both the white Honda Civic and the description of
    the perpetrator. On other break-ins, there was evidence pertaining to the
    vehicle or the description of the perpetrator.

[29]

Taking into account the evidence relating to the
    Honda Civic and the description of the perpetrator, the trial judge concluded,
    at para. 57:

These details now considered in addition to
    the general commonalities discussed earlier, specifically the method of entry
    in this context offer a constellation of evidence which speaks to the manner in
    which the acts were committed. This body of evidence on these counts is
    reasonably capable of belief and all share more specific commonalities and
    links to each other and to a person, raising the probability that these
    offences were committed by the same person.

[30]

Having determined the evidence had substantial
    probative value on the issue of identity, the trial judge went on to consider
    the potential prejudice flowing from the admission of the evidence as
    cross-count similar act evidence. She concluded the risk of prejudice was low.
    I do not propose to address this aspect of her reasons as I do not understand the
    appellant to take issue with the trial judges calculation on the prejudice side
    of the admissibility ledger. The appellants submissions focus on the finding
    that the evidence had sufficient probative value to justify its admission.

[31]

The appellant challenges the cross-count similar
    act ruling on essentially one ground. He submits the trial judge failed to
    maintain the important distinction between evidence of the manner in which the
    offences were committed and evidence linking the appellant to individual
    break-ins when deciding whether the similarities in the evidence relating to the
    12 counts justified cross-count admissibility on the issue of identity. Counsel
    argues that only evidence going to the manner in which the break-ins were
    committed can be properly considered in assessing the probative value of the
    proffered similar act evidence on the issue of identity.

[32]

Counsel argues that had the trial judge limited
    herself to evidence of the manner in which the offences were committed, she
    would have been left only with the evidence of the general commonalities. The
    trial judge acknowledged those general commonalities could not justify the admission
    of the evidence as cross-count similar act evidence on the issue of identity.

[33]

Counsel focuses on the trial judges reliance on
    the evidence connecting the four-door white Honda to many of the break-ins and
    the evidence of the similar descriptions of the perpetrator provided in respect
    of several of the break-ins. Counsel contends this evidence may have connected
    the appellant to one or more of the break-ins, but it did not offer any support
    for the conclusion that the acts referred to in respect of each break-in were
    sufficiently similar to support the inference that the break-ins were committed
    by a single person.

[34]

The trial judge was
    alive to the distinction between evidence going to the similarity of the manner
    in which the break-ins were committed and evidence which connected the accused
    to one or more of the break-ins. She specifically referred to
R. v. Arp
,
    [1998] 3 S.C.R. 339, at para. 50, where the court said:

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.

[35]

The trial judge also applied
Arp
on two
    occasions to identify evidence which, while relevant to the accuseds
    involvement in the break and enters, did not assist in determining whether the
    acts were sufficiently similar to warrant their admission as cross-count
    similar act evidence. First, the trial judge referred to Mr. Zidans evidence
    connecting the appellant to property stolen in some of the break-ins. She said
    that evidence could not assist the Crown in demonstrating the similarity among
    the various break-ins, although it clearly connected the appellant to some of those
    break-ins. Next, the trial judge held that the evidence placing the appellant
    in possession of property stolen in several of the break-ins also could not
    assist the Crown in showing the similarity among the various break-ins. As with
    Mr. Zidans evidence, the evidence putting the appellant in possession of
    the stolen property, while connecting him to the break-ins, said nothing about
    any similarities in how the break-ins were committed.

[36]

The distinction between similarities in the acts
    advanced as similar act evidence and evidence connecting the accused to those
    acts is well-established in the caselaw: see
R. v. Perrier,
2004 SCC
    56, [2004] 3 S.C.R. 228, at paras. 21-23. The distinction is particularly important
    where the similar act evidence is offered on the issue of identity: see
R.
    v. Durant
, 2019 ONCA 74, 144 O.R. (3d) 465, at paras. 101-102. Both are
    relevant to admissibility. Other acts which are not sufficiently similar to the
    act constituting the charge in issue cannot support the inference the acts were
    committed by the same person. Absent that inference, the evidence has no
    probative value as similar act evidence going to identity. Similarly, other
    acts that may be strongly suggestive of a common actor have no relevance unless
    there is evidence connecting the accused to those acts:
Arp
,
at paras. 53-54;
Durant
, at
    paras. 87-91.

[37]

I accept the appellants submission that in
    considering similarities for the purpose of determining admissibility of
    similar act evidence on the issue of identity, the focus should be on the
    manner in which the offences were committed. However, I think the appellant
    takes a much too narrow view of the kind of evidence that can be taken into
    account when considering the manner in which the offences were committed. Similarities
    which are relevant to admissibility as similar act evidence on the issue of
    identity go well beyond the strict
actus reus
of the offence. The
    requisite similarities may be found in the details of the offences said to
    constitute similar act evidence, or the circumstances surrounding or relating
    to the alleged similar acts:
R. v. Bent
, 2016 ONCA 651, 342 C.C.C.
    (3d) 343, at para. 42.

[38]

The evidence placing the distinctive four-door
    white Honda Civic at or near the scene of many of the break-ins and connecting
    that vehicle to the perpetrator of some of the break-ins, falls easily within
    the category of a circumstance or detail relating to the commission of
    those offences. I have no difficulty with the concept that the means by which a
    burglar gets to and from the scene of the burglary is part of the manner in
    which the crime was committed.

[39]

Apart from the evidence connecting the four-door
    white Honda Civic to several of the break-ins, there was other evidence
    connecting the white Honda Civic to the appellant. He regularly used the
    vehicle, which was owned by his girlfriend. That evidence, while not helpful in
    determining the similarities among the various break-ins, was relevant to the admissibility
    of the evidence as similar fact evidence in that it connected the appellant to
    the break-ins through his access to and use of the white Honda Civic. Both the
    evidence connecting the appellant to the white Honda Civic and the evidence
    connecting the white Honda Civic to many of the break-ins were relevant to the
    Crowns application to use the evidence on individual break and enter counts as
    similar act evidence on other break and enter counts.

[40]

The evidence describing the perpetrator was also
    capable of supporting the inference that the same person committed the various break-ins.
    In the context of the similar act evidence application, the primary significance
    of that evidence was not any similarity between the description of the
    perpetrator and the appellants appearance, but rather the similarities in the
    description of the perpetrator of the various break and enters.

[41]

The description of the perpetrator, as captured
    on video and provided by witnesses, could, considered in the context of the
    totality of the evidence, add considerable force to the inference that the
    individual being described or captured on video at the various break-ins was
    one and the same person regardless of who that person might be.

[42]

The evidence connecting the white Honda Civic to
    many of the break-ins and the description evidence supporting the inference
    that the perpetrator of the various break-ins was the same person were both
    properly taken into account in determining whether it was open to the trial
    judge to conclude that the perpetrator of the break-ins was the same person.
    The evidence considered as a whole provided a reasonable basis upon which the
    trial judge could conclude that the many similarities among the break-ins made
    it likely that the same person committed the break and enters:
Arp
,
at para. 48.

[43]

The trial judge did not err in holding that
    evidence relating to each of the 12 counts was admissible on the other 11
    counts in that group as similar act evidence going to the issue of the identity
    of the perpetrator of the break-ins.

C.

the trial judges ruling on the admissibility of
    the toronto robberies as similar act evidence

[44]

In 2012 the appellant pled guilty to five home
    invasion robberies committed in Toronto in 2011. The Crown submitted that there
    were significant similarities between the manner in which the victims of the
    Toronto robberies were assaulted, confined and robbed and the manner in which
    the victim of the Black Sage Crescent break-in (count 12) was assaulted,
    confined and robbed (counts 9-11).

[45]

The facts underlying the Toronto robberies were
    taken from the trial judges reasons for sentence on those charges.
[2]
The trial judge concluded that
    the similarities between the Black Sage Crescent robbery and the Toronto
    robberies justified the admission of the evidence relating to the Toronto
    offences on the Black Sage Crescent charges. The appellant contends that the
    similarities identified by the trial judge are largely generic. He also
    contends the trial judge failed to consider obvious dissimilarities.

[46]

In determining whether the evidence of the
    Toronto robberies was properly admitted it is important to emphasize the
    limited purpose for which the Crown sought to lead that evidence. The Crown
    relied on the evidence of the Toronto robberies to prove the identity of the
    person who assaulted, confined and robbed the victim of the Black Sage Crescent
    break and enter. The Crown did not rely on the evidence of the Toronto
    robberies as evidence of the identity of the perpetrator of the Black Sage
    Crescent break-in. The Crown did rely on the count-to-count similar act
    evidence as evidence identifying the perpetrator of the Black Sage residence break-in.
    As indicated above, I am satisfied the trial judge properly ruled that the
    count-to-count similar act evidence was admissible as evidence identifying the appellant
    as the perpetrator of the Black Sage Crescent break-in.

[47]

The probative value and the potential prejudicial
    effect of the evidence of the Toronto robberies must be evaluated in light of
    the narrow issue on which the evidence was admitted. The Crown did not tender
    the evidence in support of the position that the appellant broke into the Black
    Sage Crescent residence, but only to support the contention that while in the
    residence he assaulted, confined and robbed the victim. The trial judge properly
    treated the admissibility of the Toronto robberies as secondary to the
    determination of the count-to-count similar fact evidence application.

[48]

The similarities identified by the trial judge gave
    the evidence of the Toronto robberies some probative value on the issue of the
    identity of the person who assaulted, confined and robbed the victim of the Black
    Sage Crescent break-in. That probative value had to be weighed against the potential
    prejudicial effect flowing from the admission of the evidence. The Crown had to
    demonstrate on the balance of probabilities that the probative value outweighed
    the potential prejudice:
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908.

[49]

I accept that the potential probative value of
    the evidence of the Toronto robberies was not overwhelming. However, I see
    little if any potential prejudice to the appellant as a consequence of
    admitting that evidence. It is unrealistic to suggest the trial judge may have resorted
    to prohibited propensity reasoning based on the Toronto robberies when on the
    evidence before her she could easily draw the legitimate and much more powerful
    inference that, as the perpetrator of the break-in, the appellant must have
    been the person who assaulted and robbed the victim. The availability of that obvious
    and powerful inference makes it highly unlikely the trial judge would have resorted
    to fact-finding based on improper propensity reasoning:
R. v. J.C.,
2021
    ONCA 787, at para. 80.

[50]

There was also no realistic possibility of any
    reasoning prejudice flowing from the admission of the evidence of the Toronto
    robberies. That evidence was neither complicated nor time consuming. The manner
    in which the evidence was placed before the trial judge and the position of the
    appellant at trial diminished the risk of any confusion or distraction. The
    appellant did not challenge his guilt on the Toronto offences or the
    particulars of those charges, thereby reducing the risk of any reasoning
    prejudice caused by a proliferation of peripheral issues.

[51]

Finally, it is well understood that any risk of
    prejudice, either moral or reasoning, is attenuated if the trial is before a
    judge sitting without a jury:
R. v. Norris,
2020 ONCA 847,
    398 C.C.C. (3d) 1, at para. 24;
R. v. T.B.
, 2009 ONCA 177, 243 C.C.C.
    (3d) 158, at para. 28-31.

[52]

A trial judges finding that similar act
    evidence should be admitted ultimately comes down to a balancing of the
    probative value of the evidence against the potential prejudicial effect of that
    evidence. If the trial judge identifies the proper principles engaged by that
    balancing, deference is owed to her conclusion:
Handy
,
    at para. 153
;
R. v. Shearing
, 2002 SCC 58, [2002] 3 S.C.R. 33, at
    para. 73.

[53]

I see no error in the trial judges admission of
    the evidence pertaining to the Toronto robberies as evidence identifying the
    appellant as the person who assaulted, confined and robbed the victim of the
    Black Sage Crescent break-in.

D.

the sentence appeal

[54]

The appellant acknowledges the deference owed to
    the trial judge on sentencing. He submits, however, that the trial judge failed
    to properly apply the principle of totality and that a sentence in the 10-year
    range would have been appropriate.

[55]

The trial judge did consider totality,
    indicating at para. 27 of the Reasons for Sentence:

It is particularly important when considering
    consecutive or concurrent sentences for multiple offences to ensure the
    cumulative of the sentence is proportionate to the circumstances of the
    offender and of the offences. The cumulative sentence must not be crushing or
    exceeding the overall culpability of the offender.

[56]

The trial judge determined that 15 years did not
    exceed the overall culpability of the offender. She made no reversible error
    in so holding. As the trial judge accurately observed, [i]t is difficult to
    find mitigation for Mr. Fuller.

[57]

The appellant went on a crime spree in Toronto
    in 2011 that was very similar to the crime spree in Ottawa in 2018-2019. He eventually
    received sentences totalling nine years for offences committed during the
    Toronto crime spree. Before he had completed that sentence, and while he was on
    parole, the appellant committed the many offences that are the subject of this
    appeal. It would not appear that the nine-year sentence imposed on the
    appellant in 2012 had any deterrent effect.

[58]

The offences committed by the appellant, especially
    the crimes associated with the Black Sage Crescent break-in, were very serious and
    had a profound negative impact on the victims. These offences merited substantial
    sentences. The sentences imposed by the trial judge properly reflected the
    seriousness of the many crimes the appellant committed and his criminal
    antecedents. At the same time, the trial judge mitigated the total sentence to
    reflect the principle of totality.

[59]

The total sentence imposed was fit.

E.

conclusion

[60]

The conviction appeal is dismissed. Leave to
    appeal sentence is granted and the appeal is allowed, but only to the extent of
    removing the victim fine surcharge.

Released: December 14, 2021 J.M.F.

Doherty J.A.

I agree.
    Fairburn A.C.J.O.

I agree. David Watt J.A.





[1]

The appellants cellphone did not ping off a cell tower
    within two to three kilometres during the timeframe of the break-in charged in
    count 31. For this reason and others, the trial judge acquitted on this count.



[2]
The parties appear to have agreed that the Crown could tender
    evidence of the Toronto robberies by way of the transcript of the trial judges
    findings of fact on sentence. No objection was taken on appeal to the manner in
    which the facts relating to the Toronto robberies were placed before the trial
    judge on the similar act application. Counsel for the appellant did however
    submit that the manner in which the evidence was put before the trial judge
    resulted in a significant lack of detail which should have weighed against the
    probative value of the evidence and its ultimate admissibility as similar fact
    evidence.


