Trial of accused for six offences in connection with three break-ins into three restaurants during July 2012. For each restaurant accused was charged with break and enter and commit theft and with possession of instrument suitable for breaking into place. Video surveillance from each restaurant showed that person who wore black balaclava over face and black jacket entered premises. In two cases person took cash from safe but in third case person was unable to break into safe. Crown claimed that accused was perpetrator and it brought similar fact evidence application based on third incident for which there was witness who saw perpetrator leave restaurant. Police found balaclava after third break-in and DNA taken from it matched accused’s sample that was contained in national DNA bank. Accused convicted of all offences. His evidence was not credible. Court was satisfied that accused was person who was seen by witness. Similar fact evidence was admitted to show that accused broke into first two restaurants due to high degree of similarity found in three break-ins. Probative value of this evidence outweighed its potential prejudice. Ample evidence existed to show that accused was perpetrator in all three incidents. For third break-in accused was not convicted of break, enter and commit theft but rather of break and enter with intent since he could not obtain cash from safe.
R. v. Marini (Jan. 16, 2014, Ont. S.C.J., E. Gareau J., File No. 7348/12) 111 W.C.B. (2d) 301.