COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – L. T. (Appellant)
BEFORE:
MCMURTRY C.J.O, GOUDGE and SHARPE JJ.A.
COUNSEL:
Michael Dineen
for the appellant
Shawn Porter
for the respondent
HEARD:
December 21, 2004
On appeal from the judgment of Justice Anthony E. Cusinato of the Superior Court of Justice dated October 5, 2001.
E N D O R S E M E N T
1The appellant was tried before a jury on a six-count indictment alleging sexual offences committed against his sisters-in-law (two counts including one count of rape) and his daughter (four counts). He was acquitted of rape but convicted on two counts of indecent assault against the two sisters-in-law. The jury was unable to agree on a verdict on the four counts involving the appellant’s daughter.
2The appellant appeals his convictions, primarily on the ground that the trial judge erred by admitting certain similar fact evidence and by ruling that the evidence on each count was admissible on all of the other counts. The trial judge made these rulings before the Supreme Court of Canada’s decisions in R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481, R. v. Shearing (2002), 2002 SCC 58, 165 C.C.C. (3d) 225 and R. v. Blake 2004 SCC 69, aff’g (2003) 2003 13682 (ON CA), 181 C.C.C. (3d) 169 (Ont. C.A.). We have concluded that on the basis of those decisions, the similar fact evidence should not have been admitted in relation to all counts and that accordingly, the appeal should be allowed and a new trial ordered.
3The allegations against the appellant may be summarized as follows:
J.L. (sister-in-law) testified that in the summer of 1978, when she was 15 years old, she slept on the couch at the home of the appellant and her sister and that in the morning, the appellant came down, sat on the couch, slid his feet up her legs, pushed her underwear aside and inserted his toe in her vagina. He then forcibly penetrated her with his penis.
A.B. (sister-in-law) testified that from the age of 11 to 16, the appellant would approach her from behind, lean against her body and grab her breasts.
K.T. (daughter) testified that the appellant sexually interfered with her between the ages of 7 and 17. The alleged acts included touching of her breasts and genitals and forced masturbation and oral sex. K.T. testified that her sister T.T. was present when some of these assaults occurred.
4The crown also tendered evidence that in 1977 or 1978, when she was 14 or 15 years old, the appellant sexually assaulted K.R., J.L.’s best friend. K.R. testified that she sometimes accompanied J.L. to baby sit for T.T. and that when the appellant was there, he would make the gesture of grabbing her breasts and also make rude remarks. This was done in the presence of J.L. and his wife. On one occasion, he walked past her and pressed his groin against her buttocks and said “Oh, that felt good.”
5The appellant testified and denied all allegations. T.T. also testified on the appellant’s behalf and contradicted the evidence of K.T.
6The jury acquitted the appellant of raping J.L., but convicted him of the included offence of indecent assault. The jury convicted on the count of indecent assault against A.B. The jury was unable to agree on the four counts involving K.T. and a mistrial was declared on those counts.
7This appeal focuses on two rulings of the trial judge relating to similar fact evidence. The first relates to the evidence of K.R. The trial judge identified the issue as being whether the evidence showed “a pattern of sexual behaviour which is more than coincidental and supportive of [the complainants’] credibility on the issues before this court…” He observed that “evidence demonstrative only to the issue of propensity” should be excluded but found that the probative value of K.R.’s evidence exceeded its prejudicial effect. While her evidence was of particular relevance to the count involving A.B., the trial judge ruled it to be admissible on all counts
…to establish a system on the part of the accused taking sexual advantage of a minor, not only young members of his immediate and extended family, but other minors under his authority and trust when the opportunity presents itself…
8The other impugned ruling involved the admissibility of evidence across counts. The trial judge ruled that the evidence on each count was admissible on all other counts to show
…a pattern of behaviour and conduct not as to the specific areas of touching but rather the sexual conduct complained of while they were minors within the immediate family or extended family.
9He concluded that it was proper to allow the jury to use “the evidence between the counts as similar fact on the issue of credibility”.
10As we have already mentioned, when he made these rulings, the trial judge did not have the benefit of Handy and Blake. In our view, the rulings cannot be sustained in the light of those authorities.
11The appellant objects to the trial judge’s characterization of the issue in question as “credibility”. In Handy, at paras. 115-116, Binnie J. warned generally against identifying “credibility” alone as the issue upon which the similar fact evidence bears:
Credibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence.
Anything that blackens the character of an accused may, as a by-product, enhance the credibility of a complainant. Identification of credibility as the “issue in question” may, unless circumscribed, risk the admission of evidence of nothing more than general disposition (“bad personhood”).
12However, in Handy at para. 42, Binnie J. also accepted that in cases involving sexual offences involving children and adolescents, similar fact evidence may be valuable to ensure that the testimony of the complainants is not “unfairly discounted when opposed to that of ostensibly upstanding adults. The denial of the adult, misleadingly persuasive on first impression, would melt under the history of so many prior incidents as to defy innocent explanation.” In Shearing, the appellant’s defence at trial was that the alleged sexual assaults had never taken place. At paragraph 46 of his decision, Binnie J. identified the “central issue” on which the similar fact evidence bore as “the actus reus and whether the appellant’s blanket denial in that regard is credible.”
13By tying the evidence to the credibility of the complainant or defendant in relation to a specific element of a specific count (such as the mens rea or the actus reus), the trial judge is in a better position to determine: (1) whether the evidence sought to be introduced is sufficiently factually similar to the facts of the count as charged and (2) to decide whether its probative value outweighs its prejudicial effect.
14Unfortunately, in the present case, the trial judge did not define the issue with sufficient precision. He failed to define the issue with respect to which the similar fact evidence of K.R. was relevant in relation to each complainant, as well as the way in which the evidence of each complainant was relevant across specific counts. Defining the issue as credibility writ large effectively glossed over differences between the counts. With respect to the similar fact evidence of K.R. as it related to the count against A.B., the issue could have been defined as ‘the appellant’s mens rea and whether the appellant’s defence of innocent association was credible.’ However, it is difficult to identify a precise issue upon which K.R.’s similar fact evidence would be admissible with respect to the other counts. Asking whether the similar fact evidence of K.R. tends to prove the actus reus of the incestuous sexual assaults against K.T. and whether the defendant’s blanket denial of those assaults was credible, highlights the weakness of the factual connections. The facts alleged by K.R are dissimilar to the point that their prejudicial effect outweighs their probative value. Attempting to define a precise issue across counts leads to similar difficulties.
15To assess the strength of similar fact evidence, Handy, at para. 82, requires a careful assessment the “factors connecting the similar facts to the circumstances set out in the charge”. R. v. Blake reviews the need for consideration of the “similarities and dissimilarities between the facts charged and the similar fact evidence” (at paragraph 21) in the light of those connecting factors. Shearing, at para. 48, requires “a persuasive degree of connection between the similar fact evidence and the offence charged.” Arguably, K.R.’s evidence was sufficiently connected to the count involving A.B. However, the connection between K.R.’s allegations and the other counts and the connection as between counts was weak. As between counts, the nature of the allegations made by the complainants varied considerably and the allegations were disparate in time. In regard to K.T., the counts involved incestuous touching with a pre-pubescent child, progressing to masturbation and oral sex as she grew older. The count relating to J.L. alleged that the appellant raped his wife’s 15 year-old sister. The counts in relation to the appellant’s sister-in-law, A.B., and the similar fact evidence of K.R. involved sexual touching of the girls during and after puberty.
16The respondent submits that added to the similarities identified by the trial judge was the fact that all allegations concern acts committed with others present or close by, sufficient to establish a pattern of brazenness or flouting prudence by the appellant. We do not agree that additional factor is adequate to justify the result. In the circumstances of this case, these similarities are insufficient to establish the “persuasive degree of connection” that is required to justify a similar fact ruling favourable to the Crown.
17Accordingly, we allow the appeal, set aside the convictions, and direct a new trial.
“R.R. McMurtry C.J.O.”
“S.T. Goudge J.A.”
“Robert J. Sharpe J.A.”
