http://www.courts.gov.bc.ca/jdb-txt/ca/95/01/C95-0106.htm

1. Manley Bing Eng appeals his conviction by a jury on five counts of intentionally or recklessly causing damage by fire to property, contrary to s. 434 of theCriminal Code, three counts of intentionally or recklessly attempting to cause damage by fire to property, and one count of intentionally or recklessly causing damage by fire to property that he knew or was reckless with respect to whether it was inhabited or occupied, contrary to s. 433(a) of theCriminal Code. Pursuant to a direction from the trial judge, the jury returned a verdict of not guilty on a further charge of intentionally or recklessly causing damage by fire to property.

2. In respect of each of the nine counts on which he was convicted, Eng admitted that whoever caused or attempted to cause damage by fire did so either intentionally or recklessly. Thus, with respect to eight of those charges, the only issue at trial was the identity of the party responsible. On the charge laid under s. 433(a) of theCriminal Code, in addition to the issue of identification, the Crown was required to prove that the person responsible for the fire knew or was reckless with respect to whether the property was inhabited or occupied.

3. Eng now raises four grounds of appeal. In the first he challenges the reasonableness of a search of his room in his parent's residence on the day he was arrested and argues that the trial judge erred in admitting the evidence seized during that search. In the second he argues that the trial judge misdirected the jury on the law relating to similar fact evidence. In the third he alleges misdirection by the trial judge on the mental element required for the offence charged under s. 433(a). Finally, he argues that the jury's verdict on the s. 433(a) offence was unreasonable.

4. In the early morning hours of July 17, 1990, two fires occurred at a townhouse complex which was then under construction on Shakespeare Street in Victoria. The first, which caused minor damage to a building containing four units, was lit under a plastic water pipe. When the pipe melted, water was released extinguishing the fire. From this location investigators recovered a small gasoline filled plastic sandwich bag sealed with a twist tie and inside a small paper lunch bag which had been set alight. The second fire completely destroyed a building containing seven units. Investigators determined that fire had been started with the use of gasoline as a liquid accelerant. These fires were the subject matter of counts one and two on the indictment.

5. On August 11, 1990, again in the early morning hours, fires broke out in two office units on Church Avenue in Saanich. Investigators determined that gasoline was used as an accelerant at both locations. In one unit investigators recovered the melted remains of a red plastic gasoline container. In the other location they recovered the remains of a green plastic garbage bag containing gasoline which had been thrown or placed through an open window and then set alight with paper matches. A number of paper matches were found on the ground around the location of both fires. These fires were the subject of counts three and four on the indictment.

6. Within minutes of the report of fires on Church Avenue, another fire occurred in the basement of a residence two blocks away on Ophir Street. Access to the office in which the fire was set was gained through an unlocked basement door. Investigators recovered a four litre metal container used for camping fuel from the location of that fire. Outside, about 35 to 50 yards from the house, they found a partial book of matches from the Imperial Palace Hotel in Las Vegas. This fire was the subject matter of count five on the indictment.

7. Sometime during the night of August 27th and 28th, 1990, a fire was set in the washroom of the premises of Campbell Construction on Ardersier Road in Saanich. The heat of the initial fire apparently cracked the toilet bowl, flooding the room and putting out the fire. Evidence recovered from the scene of the fire included a black plastic garbage bag, a newspaper, a "Foot Locker" sports bag stuffed with rags, numerous paper matches and a book of matches from the Red Lion Inn, a local pub. Outside the building, about six feet from the open window through which the arsonist had gained access to the bathroom, was another book of matches from the Red Lion Inn. A short distance away, beside a picket fence which enclosed a small courtyard adjacent to the washroom window, investigators found a black and blue disposable flashlight. This fire was the subject matter of count six on the indictment.

8. In the early morning hours of August 29, 1990, a fire all but destroyed a dormitory at St. Michael's School in Saanich. As it was summer vacation there were no students in residence. Although a teacher and his family were living in the building at the time, no evidence was led at trial to establish whether they were on the premises at the time of the fire. Access to the dormitory was gained through one of several windows left open to air the interior of the building which was in the process of being painted. The fire alarm bells had been disconnected. Investigators recovered a melted red plastic gasoline container and spout from the site of the actual fire. Some folded black plastic garbage bags were found outside the building near one of the entrances. While investigators found that two fires had been lit at different locations in the building, only one had developed into the conflagration which eventually consumed the structure. This fire was the subject matter of the charge laid under s. 433(a) of theCriminal Code, and was count seven on the indictment.

9. At approximately 3:00 a.m. on September 10, 1990, fire broke out at a day care centre on the campus of Camosun College in Saanich. Investigators found a melted red plastic gasoline container and four burned paper matches. Also found were the remnants of a plastic bag, two twist ties and a paper bag, all of which smelled strongly of gasoline. Several doors away, in another building investigators discovered that an attempt had been made to set a fire in an office. A window had been broken and gasoline had been poured on the office contents. A burnt paper match was found on the windowsill. These two incidents were the subject of counts nine and ten on the indictment.

10. All but one of these fires, that at the Campbell Construction site on Ardersier Road, were located within a three square mile area in which Eng's residence was also located. They all occurred within a 55 day period.

11. The frequency and serious nature of the arsons had caused considerable concern in the community, and had attracted a great deal of attention in the local media. A special police task force, set up to investigate and find the person or persons responsible, had a number of suspects under surveillance. Eng was one of those suspects. On the night of the last incidents at Camosun College, the house in which he lived with his parents came under surveillance by members of the task force commencing at 1:15 a.m. After a brief attendance at the scene of the fire, the surveillance officers returned to the Eng residence at about 3:30 a.m., at which time they determined that Eng was not in his room.

12. Surveillance of the Eng residence continued uninterruptedly until shortly after 7:00 a.m. that same morning, when Eng was observed walking toward it on the street. He was arrested on an outstanding traffic warrant. When searched he was found to have a pipe wrench up his sleeve and a small black and blue disposable flashlight in his pocket. He said he had left the house at about 6:00 a.m. and had just been to the store to buy a newspaper. While he was being driven to the police station the officers noticed a "faint to moderate" smell of gasoline in the car. When asked to explain the smell, Eng stated that he hung his clothes over a gasoline container in his closet.

13. On the afternoon of September 10th a search warrant was executed at the Eng residence. Black plastic garbage bags, clear plastic sandwich baggies, twist ties and paper lunch bags were seized from Eng's room, along with a match book from the Red Lion Inn and a black and blue disposable flashlight identical to both that found at the scene of the Ardersier Road fire and that removed from Eng when he was arrested. Also found in his room were newspaper clippings of a great many arson fires, including all those charged except, of course, the ones at Camosun College. It is this search which the appellant argues was contrary to s. 8 of theCharter of Rights and Freedoms, with the result that the items seized should have been excluded under s. 24(2).

14. On September 12th a second search warrant was executed at Eng's residence as a result of information received from his parents. At that time investigators seized green twist ties, a 5 gallon red plastic gasoline container in a black plastic garbage bag, and a grey "Foot Locker" sports bag all of which were found in a spare room in the basement. At that time Mrs. Eng also produced a matchbook from the Imperial Palace Hotel in Las Vegas, identical to that found a short distance from the Ophir Street fire on August 11th, and two video tape cassettes containing television news coverage of various of various arson fires in the greater Victoria area.

15. At trial the Mr. and Mrs. Eng testified that in July they had visited Las Vegas and brought back with them two matchbooks from the Imperial Palace Hotel. One had apparently gone missing, while the other was turned over to the police on September 12th. Both denied ownership or prior knowledge of the gas container seized from the spare room in the basement of their home. Mrs. Eng also testified that while working in her garden during the summer of 1990 she found a plastic bag containing gasoline which was twist tied at the top and inside a brown paper bag. On September 12th, during the second search of the appellant's home, she put together a replica of the bags she found and gave it to the police. The replica was identical to the plastic bag filled with gasoline, twist tied and inside a brown paper bag, recovered from the arson sites at both the Shakespeare Street townhouse complex on July 17th, and Camosun College on September 10th.

16. Also called as witnesses at the trial were Michael Smith and Daniel Flint, two inmates of the Wilkinson Road Correctional Centre where the appellant was held pending trial. Both had criminal records and had received or expected to receive consideration for their testimony. They both claimed to have had discussions with Eng, while he was awaiting trial in the same lockup, during which he made detailed admissions respecting various of the fires in issue.

17. Smith, who then had a record of 35 criminal convictions, including 20 for offences of "dishonesty", as well as a history of giving evidence for the Crown against fellow prisoners in exchange for various forms of consideration, testified that Eng made the following admissions to him during the course of their many discussions:

(a) that he had burned down an unfinished housing development "on Shakespeare", putting gasoline in a plastic bag and lighting it;

(b) that he had left a "jerry can" at the Camosun College fire on the morning of his arrest;

(d) that he had burned an occupied house using camp stove fuel found in the basement of the premises, and that he had mistakenly left the can and a book of his parent's Las Vegas matches behind, which had been seized as evidence, and

(e) that he had burned a "Campbell Construction site" by throwing a lit plastic bag through a window there, but had mistakenly left behind a flashlight identical to one found in his home by the police.

18. Flint, whose criminal record was much less significant than Smith's, testified that he was present on many occasions when Eng and Smith spoke of these matters. He specifically recalled Eng making the following admissions:

(a) that he had started a fire at St. Michael's University School, disconnecting the fire alarm bells beforehand to avoid detection, and

(b) that he had set a fire in an occupied house in which he had spread fuel over some old furniture in a downstairs room.

19. Finally, the Crown introduced into evidence a letter allegedly written by Eng to Sgt. Crouch of the Saanich police three months before his trial began in which he admitted that he had "spoken" to Michael Smith, but stated that Smith would not co-operate with the Crown as a witness.

20. When the appeal was argued, counsel for Eng indicated that he had just received new information which, if investigated further, might result in an application to adduce fresh evidence relevant to the credibility of Smith. He asked for, and was granted leave to bring on such an application later after he had an opportunity to conduct further inquiries. We were subsequently informed through the registry that such an application would be brought. Still later we were advised, again through the registry, that he had received firm instructions to abandon the application, and that the Eng wished the appeal to be decided on the grounds originally argued.

III

THE ADMISSIBILITY OF EVIDENCE SEIZED PURSUANT TO THE SEARCH WARRANT ISSUED AND EXECUTED ON SEPTEMBER 10TH, 1991

21. Some further reference to the evidence is needed to put this ground of appeal in perspective.

22. When the surveillance officers returned to Eng's home, after briefly viewing the results of the Camosun College fires, they knocked on the door and were admitted by his parents who advised that Eng had left home at 12:30 a.m. that morning. At their request the father knocked on the door to Eng's bedroom which was locked. There was no response. The police officers then left the house and, without permission, walked around to the rear of the residence where they opened the window to the locked bedroom, shined a flashlight inside, and determined that Eng was not there.

23. Later, after the arrest of Eng, a decision was made to obtain a search warrant. Constable Gosling prepared a Form 1 information, in which he noted,inter alia, that surveillance of Eng's residence began at 1:15 a.m. on September 10th, that he was not observed either to enter or to leave, and that with the consent and aid of his parents it was determined that he was not in the residence at 3:30 a.m. Constable Gosling also described Eng as smelling

...strongly of a petroleum product, possibly gasoline, which has been used as an accelerant in the arson fires.

when he was arrested.

24. The items to be searched for, which were listed in the Form 1 information, and which Constable Gosling believed were in Eng's house, included;

resealable plastic bags,

dark green plastic bags,

match books or igniting devices,

metal tokens,

sports bags,

separate or accumulated articles relating to arsons in greater Victoria,

writings related to arsons,

writings related to religious materials,

disposable flashlights,

fuel containers and attachments,

invoices or receipts relating to the purchase of above items, any items having a petroleum odour,

tools for prying or breaking,

any items which may reasonably come from anyone (sic) of the recent arson sites.

25. The justice of the peace before whom Constable Gosling appeared, refused to issue a warrant on the ground that the information did not sufficiently specify the items that the officer expected to find in the residence. Constable Gosling prepared a revised list which he took before the same justice who reviewed it and told him that the items to be searched for were still not adequately described. At this point Constable Gosling left for other duties and turned the matter of the search warrant over to Sergeant Whitton, the officer in charge of the investigation.

26. Sergeant Whitton prepared a new Form 1 information based in part on the content of the first two prepared by Constable Gosling as well as on what he had been told by other officers involved in the investigation. He deliberately took it before a different justice of the peace in order to get a fresh opinion. However, this second justice also refused to issue a warrant on the ground the evidence in the Form 1 information was "too vague".

27. Sergeant Whitton then drafted a new Form 1 information. The list of items to be searched for included;

Resealable type clear plastic bags

dark green plastic garbage bags

books of matches with pink an one side and green on the other

28. The grounds for Sergeant Whitton's belief that these items would be found in the house were as follows:

On the 10 Sep./90, at apprx. 03:30 Hrs. a building on Camosun College Campus grounds was set on fire by breaking the glass window and throwing in plastic bags of gasoline and then using pink and green matches to light the gasoline on fire. The fire was extinguished and plastic bags of gasoline and matches were recovered from the fire scene.

A suspect in this fire was checked at his residence at 3:30 Hrs. Manley ENG, 3224 Aldridge St. and found not to be home. Cst. Parker spoke to Manley ENG's parents who advised that he left the house at approx. 00:30 Hrs., on the 10 Sep./90.

Cst. Gosling set up surveillance outside of Manley ENG's residence and at 7:10 Hrs., 10 Sep/90, Manly ENG was observed coming home and was checked by Cst. Gosling, Police Officer with Saanich Police, and he noticed a strong smell of gasoline coming from Manley ENG's clothing. A search of ENG, was also conducted and a pipe wrench was found concealed up the sleeve of Manley ENG's jacket. Manley ENG was asked when he went out of the house at 3224 Aldridge St. and he stated at 6:00 Hrs. this date. This is a lie because the residence was under police surveillance at that time and Manley ENG was not observed coming from the house. He also was asked how he got the gasoline on his clothing and he stated that he hangs his clothes up over a gasoline can.

This would not put the amount of odour on his clothing that was found to have been on there. The smell of gasoline on Manley ENG's clothing would be consistent with someone spilling gasoline on the clothing.

We feel that because Manley Eng lied to the police twice about the time he left and the smell of gasoline on his clothing, a search warrant is requested to see if identical items found at the scene of the fire can be found in his residence.(emphasis added)

29. Sergeant Whitton then returned to the second justice of the peace who issued the search warrant on the strength of this information. At no time did he ever disclose to her the fact that Constable Gosling had previously made two unsuccessful attempts to obtain a warrant from one of her colleagues.

30. On avoir dire held to determine the admissibility of the evidence seized when the search warrant issued September 10th was executed, it was argued that the Form 1 information contained evidence obtained in an illegal search and that it otherwise misrepresented the facts as they were at the time, by exaggerating the extent to which Eng's clothing smelled of gasoline at the time he was arrested. This alone was said to be sufficient to render the warrant illegal. It was also argued that the Form 1 information did not disclose any reasonable basis upon which it could be believed that the items listed as objects of the proposed search were likely to be found in Eng's residence. Finally, it was argued that Sergeant Whitton's failure to disclose Constable Gosling's unsuccessful attempts to obtain a search warrant amounted to a fraudulent non-disclosure which ought to vitiate the warrant and render the evidence seized by virtue of its execution inadmissible.

31. The trial judge concluded that the "observations" of the police officers who looked through Eng's bedroom window at 3:30 a.m., with the aid of a flashlight, constituted an unreasonable search and "a breach of Mr. Eng's Charter rights." He further concluded that to admit in evidence what the officers observed when they conducted this unreasonable search would bring the administration of justice into disrepute. These rulings were not challenged by the Crown on appeal.

32. Moving on to consider the validity of the search warrant issued on September 10th, the trial judge nonetheless considered the results of that unreasonable search when assessing the sufficiency of the evidence set out in the Form 1 information sworn by Sergeant Whitton. He concluded that Sergeant Whitton's error in describing the smell of gasoline on Eng when he was arrested as "strong" was made in "good faith", without any intention to deceive. He also concluded that the evidence in the Form 1 information disclosed a reasonable basis for believing that the items described therein as the object of the search were in fact in the Eng residence. Taking into account all of the evidence placed before the Justice of the Peace, including the assertion that Eng was not in his bedroom when it was checked at 3:30 a.m., the trial judge concluded that the information disclosed in the "search warrant" (by which I take it he meant the Form 1 information) amounted to reasonable grounds for granting that warrant.

33. Although it was pressed before him at some length, the trial judge's reasons for judgment do not disclose that he ruled on the argument that Sergeant Whitton's failure to disclose Constable Gosling's unsuccessful applications for a search warrant amounted to a fraudulent non-disclosure which vitiated the warrant he subsequently obtained.

34. Before us the same arguments were advanced as were made below in an attack on the validity of the search warrant issued on September 10th.

35. The argument most strongly advanced on appeal was that the evidence presented in the Form 1 information sworn to by Sergeant Whitton did not establish a proper basis for concluding that the items to be searched for would be found in Eng's residence. Support for this argument is said to be found in the highlighted portion of the information and in Sergeant Whitton's admissions under cross-examination that at the time he swore that information he did not feel he had enough evidence to charge Eng with arson, and that he had no "information" that the items it listed as the object of the proposed search were in fact in Eng's residence.

36. It is true that the final paragraph of Sergeant Whitton's statement in the Form 1 information is not phrased as well as it might have been and that it could be construed as an admission that the warrant was requested in order to see if the items in question were in Eng's room. However, the Form 1 information itself contains the statement, which appears as part of the printed form, that the informant:

...has reasonable grounds for believing that the things or some part of themare in the "Dwelling House"

37. It must be kept in mind that what is required to meet the constitutional standard of reasonableness is a search warrant founded,inter alia, on a belief based on reasonable grounds, not certain knowledge, that the things to be searched for will be found. Furthermore, under s. 487(1) of theCriminal Codeit is the justice, not the informant, who must be satisfied that there are reasonable grounds to believe that the items in question will be found in the premises to be searched. If the evidence disclosed in the Form 1 information is sufficient to meet that standard, the warrant can issue, notwithstanding the fact that an inarticulate informant may include a statement within the summary of that evidence which describes such a belief in less than precise language.

38. Here the justice of the peace had before her evidence that an arson fire in which gasoline was used as an accelerant had occurred in the early morning hours of that day, that based on the evidence of his parents and the result of the police surveillance it was reasonable to conclude that Eng, a suspect in that crime, was apparently not at home when it occurred, and that when he was apprehended several hours after the fires his clothes smelled of gasoline, he lied to the police about when he had left home and where he had been, and he admitted that he kept a gasoline can in his clothes closet. In my view, that evidence was sufficient to establish reasonable grounds for a belief that at least some of the items sought would be found in Eng's residence.

39. However, it was also argued that the Form 1 information contained both evidence which was obtained in violation of Eng's constitutional right to be secure from unreasonable search and seizure, and evidence which was false. In those circumstances, it is said that the warrant cannot stand.

40. A search will be reasonable if it is authorized by a law which is itself reasonable and if it is executed in a reasonable manner;Regina v. Collins, [1987] 1 S.C.R. 265. The visual search of Eng's bedroom at 3:30 a.m. on September 10th was not authorized by law. It was therefore unreasonable, and amounted to a violation of the his right, under s. 8 of theCharter, to be secure against unreasonable search and seizure. During the course of argument on the appeal, Crown counsel conceded that the results of the search could not, therefore, be taken into account when weighing the sufficiency of the Form 1 information on which the warrant in question was subsequently issued. That issue is therefore not before us and I will consider this argument on the assumption that the results of that search ought not to have been before the justice.

41. The trial judge found as a fact that Sergeant Whitton was honestly mistaken when he described the smell of gasoline on Eng's clothing at the time of his arrest as "strong". It cannot be said that this finding is either unreasonable or unsupported by the evidence. Thus there is no basis for concluding that the enhancement of this evidence was deliberate or designed to mislead the justice.

42. InRegina v. Simsey (1990), 55 C.C.C. (3d) 281, Lambert J.A. described the procedure to be followed when a search warrant has been issued at least in part on the basis of inadmissible or erroneous evidence:

Where there is an inadvertent error in the information or in the warrant itself, the proper question for the court to ask is whether, if the erroneous part were to be deleted, the information or the warrant could stand by itself. In the case of the information, the question is whether the information, with the erroneous part deleted, could have provided sufficient evidence to permit the warrant to be issued: seeR. v. Titan Industries Ltd.(1986), 31 C.C.C. (3d) 442 at p. 447,....

43. Applying the foregoing to this case, the question to be determined is whether a warrant could have issued based on the content of the Form 1 information sworn by Sergeant Whitton, after deleting the reference to the unreasonable search of Eng's bedroom at 3:30 a.m. and modifying the description of the smell of gasoline on his clothing at the time of his arrest from "strong" to "faint to moderate", the description given in evidence by the arresting officers.

44. Deleting from the Form 1 information specific reference to the fact Eng's residence was "checked" at 3:30 a.m. and he was found not to be home, still leaves a substantial body of circumstantial evidence, which was not challenged, and from which the justice could reasonably infer that Eng in fact was not home at the time of the Camosun College fires. The continuous surveillance of his home from 1:15 a.m. onwards, except for a brief period when the surveillance officers checked the fires at Camosun College, and the lack of response from Eng's room when his father knocked on his locked door at 3:30 a. m., all led to strong circumstantial proof that Eng did not return home between the time his parents saw him leave at 12:30 a.m. and the time he was arrested at 7:10 a.m. Thus, I am of the view that deleting the reference to the unlawful visual search of Eng's bedroom does not in any way diminish the persuasive force of the evidence put before the Justice of the Peace in support of the application for the search warrant.

45. The same is true if the enhanced evidence relating to the smell of gasoline emanating from Eng's clothing at the time of his arrest is reduced to its original form. Given the recent commission of the arsons at Camosun College, in which gasoline was used as an accelerant, the fact that Eng was obviously out and about, on foot, in the immediate neighbourhood of those fires shortly after they occurred and that he lied about when and why he left home, any smell of gasoline about his person, whether faint or strong, would have had equal probative force in terms of the criteria which must be established in order to obtain a search warrant.

46. In my view, the evidence in the final Form 1 information, that was properly before the justice of the peace, would have been sufficient to justify a decision to issue the requested search warrant.

47. The final argument raised on this ground of appeal is that Sergeant Whitton's deliberate decision to seek a search warrant without disclosing the fact Constable Gosling had earlier twice been refused a warrant, had the effect of intentionally misleading the justice of the peace before whom he appeared and must therefore necessarily vitiate the warrant which was eventually issued.

48. There was nothing improper about Sergeant Whitton making successive applications for a search warrant or applying to a different justice of the peace from the one who had twice refused Constable Gosling. New evidence was emerging as the investigation progressed. Several hours had passed from the time of Constable Gosling's last attempt, before Sergeant Whitton drew his Form 1 information, by which time the arson investigation at Camosun College revealed that gasoline had been used as an accelerant at that fire. That was one important piece of evidence not disclosed in the information drawn by Constable Gosling, who was only able to describe the fire as "suspicious". In addition, certain evidence had been omitted from Constable Gosling's Form 1 information including the lie told by Eng on his arrest to the effect that he had left home at 6:00 a.m. that day, and his statement to the effect that he kept a gasoline can in his clothes closet.

49. It is perfectly proper to bring on a fresh application for a search warrant, after one has been refused, either when new evidence becomes available or when it is apparent that the previous unsuccessful application was based on a Form 1 information which omitted important evidence which was then available. It would, of course, be improper for successive applications, based upon the same Form 1 information, to be brought before different justices of the peace. One justice of the peace has no jurisdiction to review the exercise of discretion by another. But that is not what happened in this case.

50. Sergeant Whitton was asked on cross-examination why he went to a different justice of the peace and why he did not disclose the previous unsuccessful applications. The following portion of the transcript reveals his responses:

Q And you decided that you would go in front of another Justice of the Peace, right?

A Yes.

Q A Justice of the Peace other than Marg Klassen, right?

A Yes.

Q In order to see if that Justice would issue a warrant, right?

A Yes.

Q You were concerned that the Justice of the Peace, if you went back to Mark (sic) Klassen, might not give you a warrant in light of you returning with respect to the same premises, right?

A No. That wasn't necessarily my concern.

Q What was your concern?

A The concern would be the - that she would be dealing with the Information or, having knowledge of the Information that Constable Gosling had prepared and had presented to her, and I felt more comfortable myself going to a Justice of the Peace that would have no previous knowledge and would be dealing with information that only I was aware of and that I was putting before her.

Q You were concerned that the Justice of the Peace, Marg Klassen, would already have formed an opinion about what Gosling had told her, right?

A Yes.

Q And so you wanted to get a warrant or a decision on a warrant that was not tainted by that knowledge, right?

A Yes.

Q You didn't put in either of these informations, which are Exhibits P and Q the fact that Gosling had already gone for a Search Warrant, did you?

A No, I did not.

Q Why not?

A I didn't feel that - that it was part of the - it should be part of the Information.

Q Any particular reason?

A Just the one that I just gave, that I just didn't feel it was part of the Information.

51. While it was presumptuous of Sergeant Whitton to think that a justice of the peace faced with new evidence would allow the exercise of his or her discretion in such an important matter to be "tainted" by knowledge of prior unsuccessful applications, the record does not reveal any improper motive designed to mislead the justice before whom he was appearing. I am not prepared to assume any such motivation.

52. In my view Sergeant Whitton ought to have revealed that previous applications for a search warrant had been refused by a different justice of the peace. Had he done so, the justice of the peace before whom he appeared would at least have wanted to assure herself that she was not merely being asked to review another's exercise of discretion. However, a quick comparison of the Form 1 information prepared by Constable Gosling with that prepared by Sergeant Whitton would have confirmed that such was not the case. No deception with respect to the substance of the application resulted from the non-disclosure. In short, it does not appear that the failure to disclose the prior applications had any material consequences.

53. In my view the search warrant issued on the strength of Sergeant Whitton's Form 1 information was valid and the search of Eng's bedroom on September 10th was therefore a reasonable search. It follows that I would not give effect to this ground of appeal.

THE TRIAL JUDGE'S INSTRUCTIONS TO THE JURY ON SIMILAR FACT EVIDENCE

54. It is apparent from the evidence which has been summarized that there were certain similarities in the manner in which at least some of the arsons or attempted arsons in this case were committed.

55. Following argument in the absence of the jury, the trial judge ruled that the evidence in respect of the Shakespeare Street, Church Avenue, Ardersier Road, St. Michael's University School and Camosun College arsons, Counts 1, 2, 3, 4, 6, 7, 9 and 10, was "similar fact evidence". However, he ruled that the evidence in respect of the residential arson on Ophir Street, Count 5, was not such as to be capable of constituting similar fact evidence.

56. These rulings are not directly challenged by Eng on appeal. However, objection is taken to the instructions which the trial judge subsequently delivered to the jury, which are said to have failed to explain adequately which evidence could properly be used as similar act evidence and, more importantly, which evidence could not. These complaints have the effect of calling into question the scope of the trial judge's ruling. It is therefore necessary to determine whether that ruling was correct.

57. InD.P.P. v. Boardman, [1975] A.C. 421 (H.L.), Lord Salmon delivered the classic definition of the degree of similarity required before evidence of similar acts can be admitted in proof of identity:

...if the crime charged is committed in a uniquely or strikingly similar manner to other crimes committed by the accused, the manner in which the other crimes were committed may be evidence upon which a jury could reasonable conclude that the accused was guilty of the crime charged.(p. 462)

58. Before evidence of a similar act can be adduced in proof of identity, there must be some evidence establishing it as the act of the accused. InSweitzer v. The Queen, [1982] 1 S.C.R. 949, McIntyre J. put it this way:

Before evidence may be admitted as evidence of similar facts, there must be a link between the allegedly similar facts and the accused. In other words there must be some evidence upon which the trier of fact can make a proper finding that the similar facts to be relied upon were in fact the acts of the accused for it is clear that if they were not his own but those of another they have no relevance to the matters at issue under the indictment. If authority for this proposition is required, it may be found inHarris v. Director of Public Prosecutions, [1952] A.C. 694. Viscount Simon dealt with a case somewhat similar to the case at bar. He briefly summarized the facts at pp. 695-6, as follows:

The appellant was a member of the Bradford Police Force. He was tried at the Leeds Autumn Assizes in November, 1951, before Pearson J., on an indictment containing eight counts charging him with office-breaking and larceny on a series of dates in May, June and July, 1951, by breaking into and entering the premises of a company of fruit and vegetable merchants situated in an enclosed and extensive Bradford market and stealing therefrom various sums of money. In every case the money stolen was only a part of the amount that the thief, whoever he was, might have taken; in every case the same means of access was used; and in every case the theft occurred in a period during part of which the appellant was on duty in uniform in the course of patrolling the market, and apparently at an hour when most of the gates to the market were closed to the general public. But on the first seven of these occasions, there was no further evidence to associate the appellant specifically with the thefts.

A motion to sever the counts and proceed to trial separately on each count failed and evidence was adduced respecting all counts. The appellant was acquitted on the first seven but convicted on the eighth. The appeal was brought because, although the appellant had only been convicted on the eighth count, it was complained that no direction was given to the jury to the effect that they could not consider the evidence on the first seven counts in reaching their conclusion upon the eighth. In dealing with the matter Viscount Simon said at p. 708:

It is, of course, clear that evidence of "similar facts" cannot in any case be admissible to support an accusation against the accused unless they are connected in some relevant way with the accused and with his participation in the crime.

He then referred to the words of Lord Sumner inThompson v. The King, [1918] A.C. 221, and continued:

It is the fact that he was involved in the other occurrences which may negative the inference of accident or establish his mens rea by showing "system". Or again, the other occurrences may sometimes assist to prove his identity, as, for instance, inPerkins v. Jeffery [[1915] 2 K.B. 702]. But evidence of other occurrences which merely tend to deepen suspicion does not go to prove guilt.

Lord Morton of Henryton concurred with Viscount Simon, saying, at p. 715:

I desire only to add that, in my view, evidence as to thefts which occurred on the first seven occasions was not admissible for the purpose of the trial of the appellant on the eighth count, because the appellant was not proved to have been near the shop, or even in the market, at the time when these thefts occurred. It is, however, clear that the judge invited the jury to take that evidence into account when considering the eighth count.

And Lord Tucker said at p.715:

I agree with my noble and learned friend, Lord Merton of Henryton, that the evidence with regard to the first seven occasions was irrelevant to the charge on the eighth count, but was left to the jury as relevant.(p. 954-6)

59. InSweitzer a single count had been severed for trial from a 15 count indictment. The sole issue on that charge of rape was the identity of the assailant. The trial judge ruled the evidence relating to the other 14 counts admissible as similar act evidence, despite the fact that in respect of 11 of those incidents there was no evidence linking the accused to the offence committed. The Court of Appeal dismissed the argument that the lack of nexus rendered the evidence of these 11 offences inadmissible [26 A.R. 208]:

We are all of the view that the only link with the accused in 12 cases [the 11 cases referred to above and the count in count 1] was the similarity of his technique; but there is sufficient similarity in technique to that in the three cases where the accused was identified, in our opinion, to permit the findings to be admissible as a matter of identifying the accused as being the attacker in the Page case. We are, therefore, of the opinion that the appeal on the ground of admissibility of what is said to be similar fact evidence, fails.(p. 210)

60. Of this conclusion McIntyre J. said the following:

In my view, this approach seems to proceed on the basis that, while the 11 episodes themselves are not shown to be connected with the accused, they are made admissible because of the similarity of the four incidents in respect of which there had been a testimonial connection with the appellant. They should therefore be admitted into evidence, as it were, upon the coat-tails of the four episodes. In my view, this is casting the net too wide in a search for evidence. This line of reasoning could make evidence of any nocturnal rape committed in Calgary in a period of four and a half years, where some similarity could be shown, receivable in evidence against the appellant. I would confine the admission of such evidence to cases where there is some evidentiary link, direct or circumstantial, with the accused.(p. 960, emphasis added)

In the result, the appeal from conviction was allowed and a new trial ordered.

61. FromSweitzer it is apparent that where evidence of a "similar act" is tendered against the accused on the issue of identification, its relevance, and therefore its admissibility, will depend,inter alia, on whether there is an evidentiary link between that act and the accused sufficient to enable the trier of fact to:

...make a proper finding that the similar facts to be relied uponwere in fact the acts of the accused...(p. 954, emphasis added)

Although the probative weight of that evidentiary link is not discussed by McIntyre J., I am of the view the words above noted require that it must at least be such as would enable a properly instructed jury, acting judicially, reasonably to conclude that the accused was the person responsible for the allegedly similar act. Where more than one such "act" is tendered, that assessment must be confined to the evidence which is directly related to each act viewed independently of the others. It is not legally permissible to use evidence of other "similar acts", with respect to which such nexus exists, to "boot-strap" anonymous similar acts into relevant evidence. And finally, as is evident from theHarris case, which was relied upon by McIntyre J. inSweitzer, these rules apply equally whether the similar act evidence tendered relates to events which are, or are not, jointly charged on the same indictment containing the allegation to which they are said to be relevant.

62. When applying the similar act rule, it must also be kept in mind that it is for the trial judge to decide the legal question of admissibility. InRegina v. Simpson (1977), 35 C.C.C. (2d) 337 (Ont.C.A.), the appellant was convicted on two counts of attempted murder arising out of separate assaults upon different victims. Identification of the assailant was in issue. On appeal it was argued the trial judge had erred in failing to instruct the jury that they must disregard the evidence on one count of attempted murder when considering their verdict on the other. The trial judge had, in fact, suggested the evidence on each count could be considered on the other:

...in so far as you find the evidence to be similar and perhaps providing some reason to believe that the accused was involved in both...

In response to the argument that the trial judge erred in leaving it with the jury to find whether the offences were similar, Martin J.A noted:

It was, of course, for the Judge to decide as a question of law whether the evidence on each count was admissible on the other. His decision in that respect, in the circumstances, depended upon his being satisfied that the similarities in the offences were such asto be capable of supporting a reasonable inference that both offences were probably committed by one man. It was entirely within the province of the jury, however, whether they would draw that inference; whether they drew such inference would depend on their view of the similarities in the circumstances of the two offences.(p. 345-6, emphasis added)

In other words, it is for the trial judge to determine whether the evidence is legally capable of meeting the "strikingly similar" test, while it is for the jury to decide whether, in fact, it does.

63. In a case such as this, where the Crown seeks the benefit of the application of the similar act rule in proof of identification on the trial of a multi-count indictment, the proper application of the rules emerging from theSweitzerandSimpsoncases necessarily requires a two step analysis of the evidence. In the first, the trial judge must examine the evidence directly probative to each count separately in order to determine whether, standing alone, that evidence reveals a sufficient direct or circumstantial link to the accused. If, with respect to any count, no such link exists, then the evidence on that count can have no probative value as similar act evidence on the issue of identification on any other count, and the judge is bound to so instruct the jury.

64. The second step in the analysis is to examine the evidence relative to those counts which have survived the first step, to determine whether there are circumstances in the evidence common to more than one count which are capable of supporting a reasonable inference that all such offences were probably committed by the same person. The evidence on those counts to which the accused is properly linked, in which there are circumstances that a properly instructed jury could find strikingly similar to those found on other counts, may be left to the jury as potentially admissible when assessing the case against the accused, on the issue of identification, on any count to which those striking similarities are common, including those counts where there is no other direct or circumstantial evidence linking the offence to the accused.

65. Applying the first step in the analysis to the nine counts in issue on this appeal, it is apparent that if the evidence of Smith and Flint is taken into account, and no basis has been put before us for not doing so, there is both direct and circumstantial evidence linking Eng to the Shakespeare Street arsons (Counts 1 and 2), the Ophir Street arson (Count 5), the Campbell Construction arson on Ardersier Road (Count 6), and the Camosun College arsons (Counts 9 and 10). While the direct evidence of Eng's admissions to Smith and Flint is the only evidence linking him to the St. Michael's University School arson (Count 7), I am of the view that is sufficient to meet the requirements flowing from theSweitzer decision.

66. However, in my view, there was no sufficient link, direct or circumstantial, between Eng and the Church Avenue arsons (Counts 3 and 4). The only "evidentiary links" are the green garbage bag and the melted red plastic gas container found at the scene of those fires, each of which was similar to items found in Eng's residence during the searches conducted on September 10th and 12th respectively, and the newspaper clippings also found in the search of his room on September 10th. The first two items do not take the case against Eng beyond the threshold of suspicion. The newspaper clippings could only be circumstantial evidence implicating Eng on all counts, if there was some evidence from which it could be inferred that his unusual and highly concentrated interest in the crime of arson, which they tended to demonstrate, established a culpable nexus between him and the crimes charged. No such evidence was led, and as a result it is doubtful whether these clippings had any probative value at all, particularly since they encompassed many fires other than those charged and apparently also included subject matter unrelated to arsons.

67. Thus, on the basis of this first step in the analysis, there was no way that the evidence on Counts 3 and 4 could be used by the jury when considering the guilt of Eng on any other count on the indictment. As I understand the trial judge's ruling, he reached a contrary conclusion.

68. The second step in the analysis reveals evidence of a similar nature between the Shakespeare Street arsons (Counts 1 and 2) and those at Camosun College (Counts 9 and 10). Two fires were lit in each location and an incendiary device used in both locations was identical. There was also evidence of two fires being lit at the Church Avenue arsons (Counts 3 and 4) and at the St. Michael's University School arson (Count 7). Finally, there was evidence of the use by the arsonist of black or dark green garbage bags at the Church Avenue arsons (Counts 3 and 4), and the Campbell Construction arson on Ardersier Road (Count 6). The Crown conceded that the garbage bags found outside the dormitory at St. Michael's University School could not be linked directly to the setting of that fire. In my view, these similarities were capable of supporting a reasonable inference that the same person was responsible for setting the fires to which such characteristics were common.

69. The Crown argued there were other similarities in the evidence relative to the various counts, which essentially tied all the counts together with such a web of common circumstances as to lead to a proper conclusion that all arsons were the work of the same person. Included in this list were the newspaper clippings found in Eng's room, the geographic concentration of the arson fires around his home, the use of liquid accelerants, the use of red plastic gas containers, the fact that all arsons appeared to be crimes of opportunity in the sense that access to their locations was invariably obtained through an open door or window, and the fact that paper matches were used.

70. I have already comment on the probative value of the newspaper clippings. In my view there is little about the use of gasoline or other liquid accelerants, the containers in which such liquids can be conveyed and matches that can be said to amount to a hallmark of striking similarity in the crime of arson sufficient to give such evidence probative value on the issue of identification. It would, I think be a rare arson in which such items were not used. Similarly, the so-called opportunistic nature of the arsons is not a feature from which it could be said that an inference of striking similarity sufficient to be probative on the issue of identity could be drawn. The geographic concentration of the arson fires is a circumstances which lends considerable weight to that similar act evidence properly admitted, but by itself it cannot be said to constitute a "hallmark" relative to the manner in which the fires were set.

71. Without the Crown's "web of common characteristics", the use which could properly be made of the potentially similar act evidence which I have identified was necessarily restricted. With the exception of the evidence on Count 5, the trial judge's ruling did not refect any restrictions on the use which could be made of that which he characterized as "similar fact evidence"..

72. As the trial judge quite properly noted, there was no evidence capable of meeting the "striking similarity" test as between the Ophir Street arson (Count 5) and any other fire. Thus, I agree with his ruling that the evidence on that count could have no probative force on any other count. It follows, of course, that there was no way the evidence on any other count could be used in proof of the case against Eng on Count 5.

73. What then should the jury have been told with respect to the use of similar act evidence in this case? In theSimpsoncase, Martin J.A. provided considerable guidance on the nature of the instruction which must be given to a jury where the court concludes that there is a basis upon which evidence on one count of a multi-count indictment may be admissible as similar act evidence on another:

It may be of some assistance, however, to express my views as to how a jury should be charged where the judge has ruled that evidence with respect to one count is admissible in relation to another count on the above principle (that is, proof of identity by evidence of other offences possessing similar, distinctive characteristics).

First, the trial judge should caution the jury that they are not to use the evidence on one count in order to infer that the accused is a person whose character or disposition is such that he is likely to have committed the offence or offences charged in the other count or counts. The trial judge should then instruct the jury that they are entitled to find from the evidence, although they are not required to do so, that the offences charged have characteristics in common that are so similar that it is likely that they were committed by one person, but that it is entirely for them whether such an inference should be made. The trial judge should then refer the jury to the similarities in the circumstances of the offences. The jury should be further instructed that if they conclude that the offences charged were likely committed by one person then the evidence on each count may assist them in deciding whether the accused committed the offence charged in the other count or counts. If, however, they do not draw the inference that the offences were likely committed by one person, they should, in reaching a decision on any count, consider only the evidence on that count and put out of their minds the evidence on any other count or counts. Finally, it is of the utmost importance that the trial judge should make it clear to the jury that the accused must not be convicted on any count unless they are satisfied beyond a reasonable doubt that he is guilty of that offence.(p. 346-7)

74. In this case, because of the number of counts and the variance in the evidence independently admissible on each count, as well as the different groupings of similarities, a proper instruction to the jury was necessarily far more complex in its detail than the hypothetical charge suggested by Martin J.A. But the substance of the instruction would not, and in my view could not, vary.

75. In light of the results of the two step analysis discussed above, the instructions given to the jury in this case should have reflected the following:

Counts 1 & 2: the evidence on Count 7 was potentially admissible as similar act evidence on these counts. Whether it had any probative force and was therefore admissible in that capacity, depended on whether the jury viewed the fact two fires were set at each location to be a circumstances of such striking similarity as to make it likely that the person responsible for the arson in Count 7 was also the person responsible for those in Counts 1 and 2. As well, the evidence on Counts 9 and 10 together had probative force and was admissible as similar act evidence on these counts if the jury were to conclude that the fact two fires were set in the one location and that one of them involved an incendiary device identical to that used in Count 1, made it likely that the person who committed the arsons in Counts 9 and 10 was also responsible for those in Counts 1 and 2. For the reasons already discussed, the evidence on Counts 3, 4, and 5, could not, under any circumstances, have been used when considering the evidence against Eng on these counts. Furthermore, the evidence on Count 6 was not potentially admissible on these counts because there were no strikingly similar features of that arson common to those in Counts 1 and 2.

Counts 3 & 4: the evidence on Counts 1, 2, 7, 9 and 10 was potentially admissible as similar act evidence on these two counts, if the jury were to conclude that two fires set at the location of each arson was a circumstance of such striking similarity as to make it likely that the person who set the arson fires in those counts was the same person responsible for those in Counts 3 and 4. In addition, the evidence on Count 6 was admissible on these counts as similar act evidence if the jury found the fact that black or dark green garbage bags were used at the scene of both arsons was a circumstance of such striking similarity as to make it likely that the person responsible for the arson in Count 6 was also the person responsible for those in Counts 3 and 4. The evidence on Count 5 was not admissible on these counts.

Count 5: No evidence from any other count could be used by the jury in reaching a verdict on this count.

Count 6: No evidence from any other count could be used by the jury in reaching a verdict on this count.

Count 7: The evidence on counts 1, 2, 9, and 10 was admissible as similar act evidence on this count if the jury found the fact that two fires were started in each location was a circumstance of such striking similarity as to make it likely that the person who set the arson fires in those counts was also responsible for the arson in Count 7. For the reasons already given, the evidence on Counts 3, 4, 5, and 6 was not admissible on these counts.

Counts 9 & 10: The evidence on Count 7 was potentially admissible as similar act evidence on these counts on the same basis it was potentially admissible on Counts 1, 2, 3 and 4. In addition, the evidence on Counts 1 and 2 was potentially admissible as similar fact evidence on these counts on the same basis that the evidence on these counts was potentially admissible on Counts 1 and 2. For the reasons already discussed, the evidence on Counts 3, 4, and 5 could not, under any circumstances, have been used by the jury when considering the evidence against Eng on these counts. Furthermore, the evidence on Count 6 was not potentially admissible on these counts because there were no strikingly similar features of that arson common to those in Counts 9 and 10.

76. In addition to conveying to the jury, in an adequate and coherent instruction, which evidence could be used by them as similar act evidence, depending on their view of the similarities in the circumstances in each case, in my view, it was incumbent on the trial judge to emphasize that under no circumstances could the evidence on Counts 3, 4, or 5 be used as similar act evidence when considering their verdicts on any of the other counts, and that none of the evidence on any other count could be used by them when considering the case against Eng on Count 5. As well he was bound to tell them that the evidence on Count 6 could not, under any circumstances, be used on Counts 1, 2, 7, 9 or 10, and that the evidence on Counts 1, 2, 7, 9, and 10 could not, under any circumstances, be used on Count 6.

77. It can be seen that if the scope of the similar act evidence rule was to be given its full effect in this case, the trial judge faced an almost impossible task when it came to crafting a complete and coherent instruction to the jury. In the circumstances, a severance of counts might have been ordered according to the groupings discussed above, with the result that a manageable charge could have been crafted. At the very least, in the circumstances of this case, if the rules governing the admissibility of similar act evidence were to be applied properly to each count on the indictment, the jury would have required either a flow chart or a diagram which accurately and clearly demonstrated both the potential use of the similar act evidence, and the restrictions on such use.

78. In any event, I turn now to the instructions actually given to the jury. The trial judge began by telling the jury that it was a fundamental principle of the criminal law that the evidence on one count cannot be used to prove the guilt of the accused on another count unless there are striking similarities between the counts. He then told them he had decided that certain evidence in this case could be used by them on more than one count, and that he would explain to them both what that evidence was and the basis upon which it could have such extended use.

79. The trial judge then cautioned the jury that similar act evidence must not be used to conclude that the accused is a person whose character or disposition is such that he is likely to have committed the offences charged. He then said:

But you may infer from the evidence, although you are not required to do so, that the incident mentioned in one count, and the incident mentioned in another count have characteristics in common that are so similar that it is likely they were committed by one person.

It is entirely up to you whether you decide to draw that inference or not. If you conclude that the offences charged in one count and, indeed, in another count were likely committed by one person, then the evidence on each count may assist you in deciding whether the accused committed the offences charged in the counts in question.

However, if you do not draw the inference that the two offences were likely committed by one person, then in reaching a decision on any count you must only consider the evidence relating to that count and put out of your mind the evidence on the other count.

80. The trial judge next instructed the jury that whatever their decision on the use of similar act evidence, they could not convict the accused on any count unless they were satisfied beyond a reasonable doubt that he was guilty as charged.

81. No issue is taken with respect to these instructions on the law, and I do not propose to consider them further. However, it is with respect to the ensuing instructions in which the trial judge purported to describe the evidence which, depending on their view of it, the jury could use as similar fact evidence, that the trial judge is said to have fallen into error. I set out the entirety of that instruction:

I will now review with you the evidence which, if you accept, may pertain to similar fact evidence.

Both the Crown and the defence for your convenience have given you charts which review as aide memoires what they see as the similarities in the one case, and perhaps I could describe it as the dissimilarities in the other. There are of the nine remaining counts, seven of them where there was a hallmark, a distinct hallmark, of two sets of fire being attempted.

In other words, that the arsonist, and it has been admitted all these fires are arsons, that is not in issue, identity is the issue in this case, went to the scene and either started, or attempted to start, two sets of fire, if you accept the evidence, and that, of course, is for you alone.

Counts 1 and 2 relating to 2620 Shakespeare Street.

Counts 3 and 4 relating to 1560 Church Avenue.

Count 7 relating to St. Michael's University School.

And Counts 9 and 10 relating to Camosun College.

The Crown submits that there is a hallmark which, if you accept the evidence, whether it is a hallmark is entirely for you to decide, of the arsonist, whoever he was, setting two fires in each of those locations mentioned in those counts.

And this shows his method of operation. And this points to those fires all being set by one person. It is entirely for you to decide whether or not you are satisfied beyond a reasonable doubt that that is the case in any one or more of them. And whether or not you are satisfied beyond a reasonable doubt that that would constitute a unique distinguishing hallmark.

And then, there is other evidence that is urged is similar fact evidence, namely, the incendiary device. That is to say the plastic baggie with gas inside a paper bag and the twist tie, described as a fuse-type system, a fuse device.

That was found, or the remains of it, at Shakespeare Street, Counts 1 and 2, Camosun College, Counts 9 and 10. And though you must be satisfied beyond a reasonable doubt, and Mr. Brooks has raised arguments about this, there is evidence I will review with you in detail when I come to review the evidence from the accused's mother. There is evidence about her finding something similar. And the police having reconstructed it asking her if that is what she found. I will review that and I will review the cross-examination later.

Then, another calling card, as the Crown would put it, is a match book from the Imperial Inn in Las Vegas. Such a match book was found. And I will review the evidence in detail with you and more precisely when I come to review the evidence.

In regard to the Ophir Street arson, which is Count 5. The mother of the accused has testified that she did, indeed, bring back two books of Imperial Inn match boxes from their trip to Las Vegas.

And then, of course, you have other pieces of evidence, which is explained more fully in the chart, that is applicable to some, but not all, the clippings, the newspaper clippings and the videos.

In considering whether the evidence will be accepted by you as similar fact evidence, you have got to consider and bear in mind that you must be satisfied beyond a reasonable doubt that the evidence has been proven. And that it is evidence that satisfies you beyond a reasonable doubt of a unique hallmark as opposed to a mere general similarity such as will be found in any type of crime, be it arson or bank robbery. Any reasonable doubt you must give to the accused. And, notwithstanding, you may only convict if you are satisfied beyond a reasonable doubt.

82. That was the extent of the trial judge's direction on the law relating to the similar evidence rule, and its application to the evidence before the jury. In his subsequent review of the evidence, the trial judge did not return to the subject of similar act evidence, nor did he give any further instructions to the jury on what evidence was capable of having application under the rule relating to similar acts and what evidence was not.

83. The "chart" mentioned by the trial judge in the penultimate paragraph of the above excerpt, appears to be a reference to a chart prepared by Crown counsel. Both counsel prepared charts intended to illustrate the application of the similar act evidence rule, to which they made reference during the course of their submissions to the jury. These charts were not marked as exhibits, but we were told that they were provided to the jury during their deliberations. The chart prepared by defence counsel demonstrated the differences in the evidence from count to count.

84. The chart prepared by the Crown, on the other hand, was intended to demonstrate the similarities in the evidence from count to count. As a matter of law it was flawed, as it was a manifestation of the Crown theory presented during argument in the absence of the jury, in which a web of common characteristics was said to make the evidence with respect to all counts admissible on each. As such, it was not an accurate representation of what could properly be used by the jury as similar act evidence.

85. Before us it was argued that in the instructions set out above the trial judge left a clear inference with the jury that the "calling card", consisting of the match book from the Imperial Inn in Las Vegas, could be used by them in deciding whether Eng had committed any of the acts charged in counts other than Count 5. Also objected to as error is the referrence the "chart", which is said to be an invitation to the jury to apply the similar act evidence rule in the erroneous manner suggested by the Crown.

86. I agree that the instructions quoted would likely have left the jury with the impression that the matchbook from the Imperial Inn in Las Vegas was evidence which could be used to implicate Eng on counts other than Count 5. That matchbook was, of course, a piece of circumstantial evidence implicating Eng in the arson on Count 5, but as such it had no probative value beyond that count. As already noted, and as the trial judge had earlier ruled, the evidence on Count 5 could not be used by the jury when considering a verdict on any other count on the indictment. Neither was the evidence on any other count admissible when considering a verdict on Count 5. The jury ought to have been told that, as they also ought to have been told that under no circumstances could they use the evidence on Counts 3 and 4 when considering their verdict on any other count on the indictment.

87. I also agree that the trial judge's endorsement of the Crown's "chart" had the effect of inviting the jury to apply the Crown's theory of what evidence was capable of meeting the "strikingly similar" criteria required by the law, which theory, in my view, was wrong.

88. In short, in his charge the trial judge failed to make clear to the jury which evidence could be used by them on which counts, as a result of the proper application of the similar act rule, and which evidence could not be used by them on any count other than that to which it pertained.

89. What then is the consequence of this misdirection? I find it is impossible to say whether the jury would have convicted on Count 5 if, as a result of proper instructions on the use of similar act evidence, they had understood that no evidence from any other count was probative of Eng's guilt on that count. Standing by itself, the evidence on Count 5 consisted of the testimony of Smith and Flint regarding Eng's admissions to them, and the matchbook from the Imperial Inn in Las Vegas which was found some 35 to 50 yards from the scene of the fire. Smith and Flint were unsavory characters and it is difficult to know what weight the jury gave their testimony. If they rejected it in its entirety, the matchbook cover by itself may not, in the jury's view, have been sufficient to meet the Crown's burden of proof. Thus, the verdict on Count 5 cannot be salvaged under s. 686(1)(b)(iii) of theCriminal Code:Colpitts v. The Queen, [1965] S.C.R. 739.

90. On Counts 3 and 4, the properly admissible evidence could have included the evidence on Counts 1 and 2, Count 7, Counts 9 and 10 and Count 6, if the jury found the setting of two fires at each location (Counts 1, 2, 7, 9 and 10) and the use of black or dark green garbage bags (Count 6) to be characteristics in common that were so similar as to make it likely that all arsons were committed by the same person. However, the evidence on Count 5 was not, under any circumstances, admissible in proof of those counts. The misdirection may well have left the jury with a contrary impression.

91. There was no evidence from any other count which was admissible which could assist the jury when considering the case against Eng on Count 6. The misdirection, particularly the invitation to use the Crown's chart as a guide to the application of the similar act evidence rule, was such that the jury could well have been left with a contrary impression.

92. On Count 7, the potentially admissible similar act evidence was limited to that on Counts 1, 2, 9, and 10, and again depended on whether the jury found the setting of two fires at each location to be a characteristic in common so similar as to make it likely that all arsons were committed by the same person. The evidence on Counts 3, 4, 5 and 6 could not be used by the jury in reaching a verdict on Count 7, although the misdirection, again by virtue of the invitation to use the Crown's "chart", may well have left the jury with the impression that it could.

93. From this distance I am unable to say whether the jury would have reached the conclusions necessary to make any or all of the potentially admissible similar act evidence actually admissible, or what their verdicts might have been if they had clearly understood which evidence could not under any circumstance be admitted as similar act evidence on each of the counts in question. Thus, in my view, the verdicts on Counts 3 and 4, Count 6 and Count 7 cannot be salvaged by application of the proviso found in s. 686(1)(b)(iii).

94. However, the situation with respect to Counts 1 and 2 and Counts 9 and 10 is dramatically different. In my view there was an overwhelming circumstantial case against Eng on Counts 9 and 10. He was abroad at the time the fires at Camosun College were started by the arsonist using gasoline as a liquid accelerant. When apprehended he lied about when and why he had left home. At that time, which was about four hours after the arsons in question, he smelled of gasoline and was carrying a pipe wrench up his sleeve, a circumstance which is significant given that a window was broken at the site of one of the fires. An incendiary device identical to the one found by his mother in their back yard was used to light one of the fires at that location. The raw materials necessary to construct such a device were found in his bedroom when it was searched hours after his arrest. Even without regard to the evidence of Smith and Flint, I am of the view that there was a sufficient case against Eng on those two counts to lead to the conclusion that the verdicts on them would necessarily have been the same had the misdirection not occurred.

95. As for Counts 1 and 2, I am of the view that a properly instructed jury would have found the fact that two fires were lit, one by use of an incendiary device identical to that used in Count 9, to be characteristics in common so strikingly similar to those in Counts 9 and 10, as to make it likely that the same person was responsible for all four offences. Add to that the circumstantial evidence of the identical incendiary device being found in Eng's back yard and the raw materials necessary to make such device being found in Eng's bedroom, and one is left with verdicts on Counts 1 and 2 that must necessarily have been the same if the misdirection had not occurred. Again I do not find it necessary to rely on the evidence of Smith or Flint to reach that result.

96. In the result, I find the misdirection on similar act evidence to be fatal to the verdicts on Counts 3, 4, 5, 6, and 7. There must be a new trial on those counts. I would invoke the provisions of s. 686(1)(b)(iii) to salvage the verdicts on Counts 1, 2, 9 and 10.

THE TRIAL JUDGE'S INSTRUCTIONS TO THE JURY ON THE MENTAL ELEMENT REQUIRED FOR THE OFFENCE IN S. 433(a) OF THE CRIMINAL CODE

97. The foregoing effectively disposes of the last two grounds of appeal. However, because s. 433(a) is relatively new and the fault element of this serious offence has not been the subject of much judicial scrutiny, it is worthwhile considering the issue raised by this ground of appeal. Section 433 provides:

433. Every person who intentionally or recklessly causes damage by fire or explosion to property, whether or not that person owns the property, is guilty of an indictable offence and liable to imprisonment for life where

(a) the person knows that or is reckless with respect to whether the property is inhabited or occupied; or

(b) the fire or explosion causes bodily harm to another person.

98. The trial judge instructed the jury on the law relating to Count 7 on the indictment, the St. Michael University School arson, in the following terms:

Now, as I said, the charge, Count 7, the St. Michael's University School differs from the other charges in that it is laid under s. 433, and it has an extra ingredient which is not part of the other charges. And that is that he did intentionally or recklessly cause damage by fire to property, to wit a building known as St. Michael's University School dormitory, located at 3400 Richmond Road, while knowing or being reckless with respect to whether the property was inhabited or occupied. The extra ingredient in Count 7 is the Crown must establish beyond a reasonable doubt not just the other items already mentioned by me in respect of Section 434, but also that whoever set the fire, and the defence denies that it was the accused, the accused has pled not guilty to the offence and the presumption of innocence and the burden of proof is on the Crown, whoever set the fire knew,or should have known, that the property was inhabited or occupied.

If you were to conclude that you had no doubt that the person charged had set the fire but you had a reasonable doubt as to whether it had been established that he knew,or should have known, that the property was inhabited, well then, of course, your duty on that charge, which is Count 7, would be to find the accused not guilty of the charge under Section 433(a) of the Code of intentionally or recklessly causing damage by fire to property, while knowing or being reckless with respect to knowing whether the property was inhabited or occupied, but guilty of the lesser included offence under Section 434, namely, intentionally or recklessly causing damage by fire.(emphasis added)

99. In my view, the emphasized portions of this instruction constituted misdirection. The definition of criminal recklessness is to be found in the oft-quoted passage from the judgment of McIntyre J. inSansregret v. The Queen, [1985] 1 S.C.R. 570:

The concept of recklessness as a basis for criminal liability has been the subject of much discussion. Negligence, the failure to take reasonable care, is a creature of the civil law and is not generally a concept having a place in determining criminal liability. Nevertheless, it is frequently confused with recklessness in the criminal sense and care should be taken to separate the two concepts. Negligence is tested by the objective standard of the reasonable man. A departure from his accustomed sober behavior by an act or omission which reveals less than reasonable care will involve liability at civil law but forms no basis for the imposition of criminal penalties. In accordance with well-established principles for the determination of criminal liability, recklessness, to form a part of the criminalmens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is a danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance. It is in this sense that the term "recklessness" is used in the criminal law and it is clearly distinct from the concept of civil negligence.(p. 580)

100. The instruction by the trial judge in this case invited the jury to apply a civil negligence standard when determining whether the Crown had established the "extra ingredient" required for a conviction under s. 433(a). The jury ought to have been told that before they could convict the appellant on Count 7 of the indictment, they must be satisfied beyond a reasonable doubt either that the accused knew the dormitory at St. Michael's University School was occupied, or that he was aware of the risk that it was occupied and nonetheless took the chance that it was not. In my view, the failure to instruct the jury in those terms constituted a serious misdirection which, by itself, would have required either a new trial on Count 7, or the substitution of a conviction for the lesser included offence of intentionally or recklessly causing damage by fire to property, contrary to s. 434 of theCriminal Code, had the misdirection with respect to the similar act evidence rule not occurred.

101. For the reasons already noted, it unnecessary to consider the fourth ground of appeal, which was that the verdict on Count 7 was unreasonable and incapable of being supported by the evidence.

102. As a result of the misdirection with respect to similar fact evidence, I would allow the appeal from conviction on Counts 3, 4, 5, 6 and 7, set aside the guilty verdicts and direct a new trial on those counts. I would dismiss the appeal from conviction on Counts 1, 2, 9 and 10.

"The Honourable Mr. Justice Wood"

I agree:

"The Honourable Madam Justice Rowles"