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Similar Fact - Gangs

R. v. Perrier, 2004 SCC 56, [2004] 3 SCR 228  CanLII

...


The accused was charged with several offences arising from three separate incidents of gang home invasions that occurred in the same area over a four-week period.  The method of operation adopted by the gang on each of these occasions was distinctive.  The accused was first convicted of robbery and break and enter relating to the third incident.  The charges in this case relate only to his alleged involvement in the first two incidents.  The issue at trial was his identity.  Although the Crown admitted that membership in the gang rotated, the Crown asserted that the accused was involved in all three incidents.  The accused’s role was also alleged to have varied.  The trial judge instructed the jury that “evidence admitted with respect to each of the three incidents is admissible in proving the guilt of each accused on the others”.  The jury convicted the accused on all counts.  The majority of the Court of Appeal upheld the convictions.

Held:  The appeal should be allowed and a new trial ordered.


The trial judge erred in directing the jury that they could consider the evidence from one incident as similar fact evidence with respect to identification, not of the gang but of the accused, for the other incidents.  Similar fact evidence of group activities is admissible in order to identify a group or gang responsible for a particular crime.  Where several crimes were committed

with a unique modus operandi,

and the objective improbability of coincidence is high, the trier of fact should be permitted to draw an inference that the same gang committed the acts.  


However, where evidence of similar offences committed by a gang is being introduced not just to identify the gang itself but to identify a particular member, a sufficient connection between the individual and the crimes of the group must be established.  


Where, as here, membership in the group is not constant, this additional requirement will be satisfied if


(a) the accused’s role was sufficiently distinctive that no other member of the group or other person could have performed it;


or (b) there is independent evidence linking the accused to each crime.  


Without this additional link, the required nexus between the similar fact evidence and the acts of a particular accused is absent, and it will not have sufficient probative value to outweigh the prejudice caused.

In this case, the similar fact evidence was admissible to attach blame to the gang itself but not to an individual member of the rotating gang.  To use evidence of one crime as proof of involvement in others is only appropriate where the similarities are so striking as to preclude coincidence.  

...

Jim O'Neil, LL.B.

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