R. v. Chan

Major J.— This decision is a companion case to R. v. Perrier, [2004] 3 S.C.R. 228, 2004 SCC 56, with reasons released concurrently. While the disposition is the same and for the same reasons, there are some facts particular to Mr. Chan set out below.

The evidence against him was: the testimony of George Wang, an accomplice; stolen identification from one of the victims found by the police in a search of the appellant’s residence; as well as evidence of numerous cell telephone calls and pager messages between the appellant and Mr. Wang just before and after each incident. In addition, the police intercepted a telephone call between Mr. Wang and the appellant that was later characterized by Ryan J.A. at the Court of Appeal as a conversation from which the jury might infer that the appellant and Mr. Wang were concerned that Michael Braun might be a “snitch” ((2003), 187 B.C.A.C. 214, 2003 BCCA 508, at para. 9).

The use of one incident as evidence of others is only applicable where the similarities are so striking as to preclude coincidence. The similarities between the incidents demonstrate that it was likely the same group that committed the offences but do not point to any individual trademark or characteristic that can serve to identify the appellant. As in Perrier, I agree with the reasons of Ryan J.A. that the trial judge erred in directing the jury that they could consider the evidence on one count as similar fact evidence on the others.

The appeal is allowed and a new trial ordered.