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Following the testimony of Ms. Hart, the Crown applied to call the evidence of Georgina Bauer as similar fact evidence. Several years before meeting the appellant, Ms. Bauer had received $200,000 from the settlement of an accident claim. She used some of the settlement money to start her own business, a nail and beauty salon. Ms. Bauer met the appellant in 1991 when he began to attend at her salon every two to three weeks. The appellant befriended Ms. Bauer and impressed her with his talk of horse-racing and various business opportunities. On several occasions the appellant took Ms. Bauer to dinner and spent lavishly. At this time Ms. Bauer's business was starting to fail and she came to rely upon the appellant for advice.
On one occasion, the appellant returned from Florida, took Ms. Bauer to dinner and told her of a "fail-safe" investment in Florida real estate. The appellant said that he was going to match dollar for dollar any investment made by Ms. Bauer. By the end of the dinner Ms. Bauer had given the appellant a cheque for $60,000, virtually all that remained of her settlement. The appellant also said that as collateral he would put up ten of his race horses. In the days following, Ms. Bauer pressed the appellant for some type of documentation. Eventually, the appellant produced a bill of sale which purported to sell an interest in some horses to Ms. Bauer. Ms. Bauer testified at trial that she believed her investment was in real estate and she did not want to purchase horses. The appellant told Ms. Bauer that within 60 to 90 days she would get back her original investment together with $30,000 profit.
During the 90 day period, Ms. Bauer's salon failed and she became very concerned about the money invested with the appellant. On one occasion when the appellant returned from Florida he asked to see Ms. Bauer urgently. He began to tell her a story about how one of the key people involved in the Florida investment had been murdered. Ms. Bauer told the appellant that she did not want to hear any more and that she had understood that the investment was legal. Ms. Bauer kept pressing the appellant for the money but he became upset and told her to leave him alone.
Ms. Hart's story was somewhat implausible. The fact that within months of having lost all of Ms. Hart's money the appellant using a similar approach was able to obtain Ms. Bauer's money lent support to Ms. Hart's claim. The evidence was not admitted to show a mere propensity, or that the appellant was a person likely to commit fraud. The evidence disclosed a pattern of similar behaviour and similarity in approach by the appellant to naïve victims. Ms. Bauer's evidence made Ms. Hart's testimony as to the nature of the representations made to her and her reliance upon them more probable.
Mr. Gold placed considerable reliance on the fact that it was never proved that the appellant's transaction with Ms. Bauer was fraudulent. However, similar fact evidence is admissible even if that evidence does not itself constitute a crime: see R. v. Robertson (1987),1987 CanLII 61 (SCC), 33 C.C.C. (3d) 481 (S.C.C.). In this case, Ms. Bauer's evidence was probative because of the nature of the representations made by the appellant and not necessarily because the appellant's conduct was proved to be dishonest in Ms. Bauer's case. As the trial judge put it, although the two witnesses had never met, Ms. Bauer's testimony was "resonant with echoes of Ms. Hart's exact phraseology". We would not interfere with the exercise of the trial judge's discretion in favour of admitting this evidence.
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