HMTQ v. Grabowski


2004 BCSC 328

Date: 20040311
Docket: 111263
Registry: Victoria

Her Majesty the Queen



Kenneth Alexander Grabowski

Before: The Honourable Madam Justice Bennett

Ruling on the issue of Similar Act Evidence

Counsel for the Crown

J. Doyle
J.B. Johnston

The Accused, Kenneth Alexander Grabowski

Appeared on his own behalf

Date and Place of Application:

February 11-13, 2004


Vancouver, B.C.


[1]                THE COURT:  On February 13, 2004, I allowed an application by the Crown and permitted the evidence on each count on the May 25, 2000 fires to be admitted on the other counts based on the application of the similar fact evidence rule.  I advised that Reasons would follow and these are the Reasons.

[2]                The accused, Kenneth Grabowski, is facing ten counts of arson-related offences.  The Crown sought to have the evidence on each count on the Indictment relating to offences allegedly committed on May 25, 2000 admitted as similar fact evidence with respect to the other.  I have previously ruled that the evidence of acts arising from the accused’s plea of guilty to a number of arsons in Winnipeg in 1990 is inadmissible as similar act evidence. 

[3]                At the outset of the case, it was agreed that the ruling with respect to the admissibility of the count-to-count similar fact evidence was to be argued at the end of the Crown’s case.  The purpose in delaying the ruling was that the evidence would be called before the trier of fact in any event and there was no need to prolong the voir dire for consideration of that ruling.

[4]                The Indictment in this case charges the accused with ten counts arising from seven fires in the Victoria and Saanich area.  The counts are summarized briefly in chronological order as follows:

·         April 10, 2000: A fire occurred at 810 Rogers Street, Saanich, B.C.  An old garage situated by the road caught fire (I used the term “caught fire” as there is an issue regarding whether some of the fires were intentionally or accidentally caused).  The house is a number of meters from the garage.  There is no evidence connecting the accused with this fire, save surveillance evidence that he walked passed the location some time after the fire.  The identity of the accused as the perpetrator can only be proved by similar fact evidence.

·         May 25, 2000:  The accused is charged with setting five fires in the early morning hours of May 25, 2000.  The Victoria fire department responded to a sixth fire in Victoria around 8:42 a.m., almost three hours after the accused was taken into custody.

·         Revelstoke Home Building Supply (“Revelstoke”):  This was the first fire on May 25 reported at approximately 3:25 a.m.  The fire started in a storage shed at the back of the Revelstoke store.  The entire store burned to the ground.

·         Whitehall Boats Supply:  This was the second fire reported at 3:29 a.m.  It is in close proximity to the Revelstoke fire.  This fire was started in a storage shed beside the main building.  This fire was observed before it became a large blaze and was extinguished.

·         3175 Carroll Street:  This fire was the third fire reported at 5:12 a.m.  In fact, fire fighters and police observed a large plume of smoke in the sky to the north of the Revelstoke fire before this fire was reported.  A garage at the back of the house, which was used for storage, was set on fire.  The flames were so intense that the siding of the house next to it began to melt.  The garage was damaged significantly and had to be torn down.

·         3082 Washington Street:  This was the fourth fire and was reported at 5:13 a.m.  This house is a block south of Carroll Street.  Carroll Street and Washington Street are parallel to each other and the backyards join.  Garbage and other items were piled up on a chair under an overhanging window.  The material was set on fire.  As a result, the house also caught on fire.  Fortunately, this fire was quickly controlled, first by the resident and then by the fire fighters.

·         Traveller’s Inn – 120 Gorge Road:  A person broke into the kitchenette of a motel room and was seen by the tenant shortly after 5:00 a.m.  The person fled, but a description of the perpetrator was obtained.  While the tenant was chasing the perpetrator, a fire was reported in the kitchenette by the person in the adjoining room.  Some damage occurred to the kitchenette.  The fire was reported at 5:18 a.m.

·         Johnson Street:  The Victoria Fire Department responded to a fire at an abandoned house in downtown Victoria at 8:42 a.m.  The evidence suggested that squatters had been living in the house and that the fire may have started in a mattress.  The house was destroyed.  The accused was in custody by the time this fire was called into the fire department.  The accused has not been charged with this offence.

·         June 22, 2000:  Mr. Grabowski was under surveillance and was seen leaving his home at 10:58 p.m.  The surveillance team lost sight of him and did not pick him up again until he was seen returning home at 11:33 p.m.  In the meantime, a fire started at the Pacific Forestry Research Centre, which was within walking distance of Mr. Grabowski’s home.  The fire appears to have started near a shade house, which is a type of green house.  The shade houses were a distance away from the main building.  The fire department was notified by an alarm system at 11:20 p.m.

[5]                The Crown has conceded that Count 1, relating to the fire on April 10, 2000 does not fall within the ambit of the similar fact evidence rule and it is not seeking to have the evidence from May 25, 2000 applied to this count.  There is no other evidence connecting the accused to Count 1.  As a result, the Crown has agreed that I should direct a verdict of acquittal with respect to this count. 

[6]                The Crown is also not seeking to have the similar act evidence rule apply to the fire on June 22, 2000 at the Pacific Forestry Centre.  Therefore, that count will stand on its own.

[7]                Before commencing the analysis with respect to the May 25, 2000 fires, I note that there was an application at the commencement of this trial to sever Count 10, the June 22, 2000 fire, from the Indictment.  I dismissed that application, but advised the accused that he could renew that application.  He has not renewed the application to sever the count, however since he is unrepresented, I have considered whether to sever this count, given the position of the Crown with respect to the similar act evidence.  I have determined that it is not appropriate to sever the June 22, 2000 count from this Indictment and I am satisfied that an appropriate direction to the jury with respect to this count and the other counts will address any potential prejudice to the accused.

[8]                The Crown seeks to tender the similar fact evidence for proof of two issues in the trial.  The first is to prove that the fires were deliberately set and secondly, on the issue of identification.

[9]                In R. v. Arp (1998), 129 C.C.C. (3d) 321 (S.C.C.), the court said that the analysis of whether to admit similar fact evidence is conducted in two stages.  First, the trial judge must assess whether the same person likely committed the offences.  Evidence connecting the accused to the crimes of similar acts is not taken into account at this point.  Once a trial judge concludes that the same person likely committed the acts, then he or she must assess whether there is a link between the similar acts and the accused. 

[10]            At paragraph 50, the court summarized the approach this way:

In summary, in considering the admissibility of similar fact evidence, the basic rule is that the trial judge must first determine whether the probative value of the evidence outweighs its prejudicial effect.  In most cases where similar fact evidence is adduced to prove identity it might be helpful for the trial judge to consider the following suggestions in deciding whether to admit the evidence:

(1)        Generally where similar fact evidence is adduced to prove identity a high degree of similarity between the acts is required in order to ensure that the similar fact evidence has the requisite probative value about weighing its prejudicial effect to be admissible.  The similarity between the acts may consist of a unique trade mark or signature on a series of significant similarities.

(2)        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 accused's involvement in each act.

(3)        There may well be exceptions but as a general rule if there is such a degree of similarity between the acts that it is likely that they were committed by the same person then the similar fact evidence will ordinarily have sufficient probative force to outweigh its prejudicial effect and may be admitted.

(4)        The jury will then be able to consider all the evidence related to the alleged similar acts in determining the accused's guilt for any one act.

Once again these are put forward not as rigid rules but simply as suggestions that may assist trial judges in their approach to similar fact evidence.

[11]            This probability analysis was also referred to by our Court of Appeal in R. v. Brisbin (1995), 101 C.C.C. (3d) 334 (B.C.C.A.).  In that case, a white GMC van with a burned out tail-light was seen at the scene of three arson fires.  The accused owned such a van.  The question posed at paragraph 38 was:

In the case at bar all three fires were committed in the appellant's small community of Sechelt and Gibsons. Each fire was set around midnight, in covered residences with a liquid accelerant. The fires occurred within a few days of one another. On each occasion a white van with a non-operating right rear tail-light was spotted in the vicinity of each fire. As counsel for the Crown put it in her factum:

    The question became: is it possible that there was another person, operating at the same time of day, in the same geographical area, in the same week, driving a white GMC van with a burned out passenger tail-light, setting fires in the same way that the Appellant set fire to the Thomas residence?

[12]            The court held that to state the question recognized the force of the reasoning.

[13]            In this case, there is evidence to support a finding that the five fires on May 25, 2000 were started in a two-hour period between approximately 3:15 to 5:18 a.m.  The fires also occurred within a close distance to each other.  Two fires, in businesses, were on one side of the Gorge Waterway and were reported within a few minutes of each other.  The two businesses are minutes apart in walking distance.  The other three fires were on the other side of the Gorge Waterway, were all residences and also closely related in distance and time to each other.  These three fires occurred within blocks of one another and were reported at 5:12 a.m., 5:13 a.m., and 5:18 a.m.  The distance from the Revelstoke and Whitehall Boat fires on one side of the Gorge Waterway is well within walking distance to the other three fires which occurred on the other side of the Gorge Waterway, across a pedestrian trestle. 

[14]            There is evidence that all five fires were deliberately set.  There was no challenge to whether three of the fires were deliberately set.  These are the fires at Whitehall Boats, Washington Street and the Traveller's Inn.  During cross-examination of the fire experts, there were issues raised with respect to the possibility of the fire at Revelstoke and the fire at 3175 Carroll Street being accidentally started, either as a result of a malfunction in a motor vehicle at Revelstoke, or as a possibility of a cigarette tossed into a mattress at Carroll Street.  The evidence does not strongly support either of those propositions, however, those issues of fact are before the jury. 

[15]            The fire at Revelstoke was set in a shed appended to the main building.  In order to access the Revelstoke building, a person would either have to climb over and under an eight-foot fence.  The fire at Whitehall Boats was set in a shed appended to the main building.  The fire at Carroll Street was set in a garage, which was referred to as a shed by the occupant, behind the residential house.  The fire at Washington Street was set beside the house and the fire at the Traveller's Inn was set in a kitchenette connecting two motel units.

[16]            The question to be posed is, what is the likelihood of there being deliberately set fires and accidentally set fires all on the same morning between the hours of 3:15 and 5:18 a.m., all within walking distance?  I find that “the likelihood of such a coincidence is objectively improbable”.  See Arp at para. 43.

[17]            The next question to be posed is what is the likelihood of there being more than one person setting fires in Victoria between the hours of 3:15 to 5:18 a.m., on the same day, all within walking distance of each other?

[18]            In my view, the likelihood is nil.  In other words, the likelihood of coincidence is objectively improbable.

[19]            In coming to this conclusion, I have taken into account the sixth fire which was reported at 8:42 a.m. at Johnson Street when Mr. Grabowski was already in custody and had been so since 6:00 a.m.  While it will be for the jury to ultimately consider, I am not persuaded that the Johnson Street fire was set by the person who set the first five fires.  This fire occurred three hours after the Traveller's Inn fire and was four miles away.  It could have been set accidentally to a mattress by squatters living in the house.

[20]            Clearly, there are also differences between the fires, however, these do not answer to the significant facts of time and proximity.  In his able submissions, Mr. Grabowski outlined a number of these differences which I have taken into account, but do not persuade me that is unlikely that there was more than one person setting fires in the Victoria area in the same geographic location, in the same time frame and on the same day.

[21]            In R. v. Arp, supra, the court stated the test for admissibility for similar act evidence is whether the probative value of the evidence outweighs its prejudicial effect: See para. 42.  The test when identity is in issue is whether the probative value of the evidence is significantly outweighed by the prejudicial effect: See para. 44.  The test for admission is on the balance of probabilities that the same person committed the alleged similar act:  See para. 48.

[22]            The court said the following on the issue of identification at para. 45:

... a principled approach to the admission of similar fact evidence will in all cases rest on the finding that the accused’s involvement in the alleged similar acts or counts is unlikely to be the product of coincidence.  This conclusion ensures that the evidence has sufficient probative force to be admitted and will involve different considerations in different contexts. Where, as here, similar fact evidence is adduced on the issue of identity, there must be a high degree of similarity between the acts for the evidence to be admitted. For example, a unique trade mark or signature will automatically render the alleged acts "strikingly similar" and therefore highly probative and admissible. In the same way, a number of significant similarities, taken together, may be such that by their cumulative effect, they warrant admission of the evidence. Where identity is at issue ordinarily, the trial judge should review the manner in which the similar acts were committed -- that is to say, whether the similar acts involve a unique trade mark or reveal a number of significant similarities. This review will enable him or her to decide whether the alleged similar acts were all committed by the same person. This preliminary determination establishes the objective improbability that the accused's involvement in the alleged acts is the product of coincidence and thereby gives the evidence the requisite probative force. Thus, where the similar fact evidence is adduced to prove identity, once this preliminary determination is made, the evidence related to the similar act (or count, in a multi-count indictment) may be admitted to prove the commission of another act (or count).

[23]            In summary, I have concluded that it is likely that the same person set the five fires on May 25, 2000 between the hours of 3:15 to 5:18 a.m.  All five fires are within the same time frame, within the same geographic area, on the same day and were likely set with an open flame to readily available combustible material.  Further, it is likely that all five fires were deliberately set fires and not accidental.

[24]            The next issue is whether there is evidence which links the accused to the similar acts.

[25]            Firstly, there is strong evidence linking Mr. Grabowski to the Traveller's Inn fire, in that a person was seen by a witness, Mr. Joly, in his kitchenette, at the Traveller's Inn, just before the fire started.  Mr. Joly described the person as a white male wearing a black jacket with white writing on the back, black jeans, age between 18 to 30 years, height, five foot seven, weight, 160 pounds with black curly hair.  Mr. Grabowski was apprehended shortly after that fire was reported and he closely resembled the physical description provided by Mr. Joly.  Mr. Joly identified Mr. Grabowski’s jacket in court as similar to the one he saw.  He also identified, to a degree, Mr. Grabowski.  The identification of Mr. Grabowski is, in my view, tainted and the jury will be so instructed, because Crown counsel in the prior trial, not Crown counsel in this trial, showed Mr. Joly photos of Mr. Grabowski prior to court.  I place no reliance on Mr. Joly’s subsequent identification of Mr. Grabowski.

[26]            Mr. Grabowski is also linked to the Whitehall Boats fire.  First of all, he is linked by the evidence of Skip Paleniuk, who is an expert in finding and analyzing microtrace evidence.  Mr. Paleniuk examined Mr. Grabowski’s clothing and found trace evidence of matting fibreglass which is used at Whitehall Boats to make boat moulds and was in abundance in the area where the fire was started.  Further, Mr. Paleniuk testified that he found chips of hardwood in Mr. Grabowski’s clothing.  There was an abundance of teak dust at Whitehall, also where the fire started.  Teak is a hardwood.  Further, there is a videotape of a person, who strongly resembles Mr. Grabowski, walking through the Save-On-Foods parking lot at the time that would place him near two of the fire locations around the time of these two fires.  The Save-On-Foods parking lot is within a direct walking route between Whitehall Boats and Revelstoke Home Centre.  Mr. Grabowski points out that you cannot see the face of this person because of the quality of the tape and he is correct.  However, the physical appearance, when compared with the photograph of Mr. Grabowski on his arrest that evening, is very similar.  It is certainly some evidence to link Mr. Grabowski to both the Whitehall and Revelstoke fires, in that it could place him very close to both locations at 3:06 a.m.

[27]            A witness, Mrs. Mitchell, observed a person roughly matching the description of Mr. Grabowski’s clothing, height and weight, standing outside the Revelstoke Home Centre at 3:15 a.m.  Mrs. Mitchell pointed to a photo line-up identifying another person as having similar hair to the person she saw, relating it to the length and the collar.  Mr. Grabowski was in that photo line-up, but the back of his hair is not visible nor is he wearing a collar. 

[28]            There is very little evidence linking Mr. Grabowski to the fire at 3082 Washington Street.  There was pink fibreglass found strewn about the fire site at the Washington Street address and Mr. Paleniuk found one strand of pink fibreglass in Mr. Grabowski’s shoe. 

[29]            There was some gold or yellow fibreglass found in Mr. Grabowski’s clothing.  This type of fibreglass was sold at Revelstoke Home Centre, but it was not in or near the fire site and therefore I disregard that evidence as linking Mr. Grabowski to the Revelstoke fire scene.

[30]            There is no evidence directly linking Mr. Grabowski to the Carroll Street fire.  This count clearly depends on similar fact evidence with respect to the other fires. 

[31]            Taking into account all of the evidence, I am satisfied that there is a sufficient “link” between Mr. Grabowski and the May 25, 2000 fires:  See R. v. Sweitzer, [1982] 1 S.C.R. 949.

[32]            The ultimate test for the admission of similar fact evidence on the issue of identification is whether the probative value of the evidence substantially or significantly outweighs its prejudicial effect.  In R. v. Handy, [2002] 2 S.C.R. 908, Binnie J. said, at para. 47, that the probative value of the evidence will exceed the prejudicial effect when “the force of similar circumstances defies coincidence or other innocent explanation”.

[33]            In Handy, Binnie J. said at para. 42:

In any case, the strength of the similar fact evidence must be such as to outweigh “reasoning prejudice” and “moral prejudice”.  The inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence.

[34]            Thus, the court must look at the potential for both moral prejudice, which is the risk of an unfocused trial and a wrongful conviction as a result of the jury embarking on the forbidden chain of reasoning (at para. 139); and reasoning prejudice where the jury may become distracted from the proper focus of the charges alleged (at para. 144).

[35]            Some of the factors for consideration are found in Handy at para. 82 and 83:

The trial judge was called on to consider the cogency of the preferred similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves. Factors connecting the similar facts to the circumstances set out in the charge include:

(1)        proximity in time of the similar acts (D. (L.E.), supra, at p. 125; R. v. Simpson (1977), 35 C.C.C. (2d) 337 at p. 345, 77 D.L.R. (3d) 507 (Ont. C.A.); R. v. Huot (1993), 16 O.R. (3d) 214 (C.A.) at p. 220;

(2)        extent to which the other acts are similar in detail to the charged conduct: Huot, supra, at p. 218; R. v. Rulli (1999), 134 C.C.C. (3d) 465 at p. 471, 172 D.L.R. (4th) 668 (Ont. C.A.); C. (M.H.), supra, at p. 772;

(3)        number of occurrences of the similar acts: Batte, supra, at p. 227-28;

(4)        circumstances surrounding or relating to the similar acts (Litchfield, supra, at p. 358);

(5)        any distinctive feature(s) unifying the incidents: Arp, supra, at paras. 43-45; R. v. Fleming (1999), 171 Nfld. & P.E.I.R. 183 (Nfld. C.A.), at paras. 104-5; Rulli, supra, at p. 472;

(6)        intervening events: R. v. Dupras, [2000] B.C.J. No. 1513 (QL) (S.C.), at para. 12 [summarized 47 W.C.B. (2d) 72];

(7)        any other factor which would tend to support or rebut the underlying unity of the similar acts.

On the other hand, countervailing factors which have been found helpful in assessing prejudice include the inflammatory nature of the similar acts (D. (L.E.), at p. 124) and whether the Crown can prove its point with less prejudicial evidence. In addition, as stated, the court was required to take into account the potential distraction of the trier of fact from its proper focus on the facts charged, and the potential for undue time consumption. These were collectively described earlier as moral prejudice and reasoning prejudice.

[36]            The list is not exhaustive.  Binnie J. made the point that not all factors will be necessary in every case.  Each case will depend on the facts and the issues engaged. 

[37]            In Handy, Binnie J. resolves the various references to “hallmarks”, “signatures” and “fingerprints” in the context of the necessary degree of similarity.  He says at para. 41:

References to “calling cards” or “signatures” or “hallmarks” or “fingerprints” similarly describe propensity at the admissible end of the spectrum precisely because the pattern of circumstances in which an accused is disposed to act in a certain way was so clearly linked to the offence charged that the possibility of mere coincidence, or mistaken identity or mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact.  The issue at that stage is no longer “pure” propensity or “general disposition” but repeated conduct in a particular and highly specific type of situation.  At that point, the evidence of similar facts provides a compelling inference that may fill a remaining gap in the jigsaw puzzle of proof, depending on the view ultimately taken (in this case) by the jury.

[38]            This is a case where the offences are on the Indictment and are not external similar fact arson offences.  The offences are very close in proximity of time.  There are similarities with respect to each of the fires, however, the main factor that leads me to the conclusion that it is likely that the same person is setting these fires is the proximity in both distance and time.  There is sufficient evidence linking the accused to the similar acts.

[39]            The risk of prejudice in this case, both moral and reasoning prejudice, is considerably less than the prejudice that presented itself with the application to admit the Winnipeg fires.  In this case, the jury has heard the evidence and will not embark on reasoning prejudice as there are no external offences which have been tendered before them.

[40]            A clear instruction to the jury will deal with any concern of the jury embarking on a forbidden chain of reasoning which would result in the accused being convicted not on the evidence but on the basis that the accused had a general tendency to commit the crime alleged.

[41]            In my view, the evidence is highly probative, both on the issue of identification and on the issue of whether the fires were deliberately set.  I find that the probative value of the count-to-count similar fact evidence significantly outweighs any prejudicial effect.  The similar act evidence rule will apply with respect to each issue raised by the Crown and the jury will be so instructed.

“E.A. Bennett, J.”
The Honourable Madam Justice E.A. Bennett