WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
CITATION: R. v. Burnett, 2025 ONCJ 686
DATE: 2025 12 22
COURT FILE No.: Central West Region (Niagara) 998-24-45200735
BETWEEN:
HIS MAJESTY THE KING
— AND —
Davell Burnett
Before Justice J. De Filippis
Heard on December 16, 2025
Reasons for Judgment released on December 22, 2025
Ms. H. Bajwa........................................................................................ counsel for the Crown
Mr. M. Peterson............................................................................................. for the defendant
De Filippis, J.:
INTRODUCTION
1The defendant is charged with sexual assault and forcible confinement with respect to two young women. A trial is scheduled before me in February 2026. The Defence brought a severance motion, seeking separate trials with respect to each complainant. The Crown brought a cross-count similar fact evidence application.
2The Crown’s position is that the accused engaged in a pattern of similar behaviour that confirms each complainant’s account of the events. The Defence argues that the Crown cannot meet the test for admission of the proposed evidence. The parties agree that I should hear argument on the Crown motion and that my ruling will determine the result in the Defence severance motion. If the Crown motion succeeds, there will be one trial with cross-count evidence. If not, there will be two trials without cross-count evidence.
3I find that the Crown motion succeeds.
ANTICIPATED EVIDENCE
4The two complainants are M.A. and K.B. Both provided statements to police, several months apart. There is no suggestion that M.A. and K.B. know each other.
5This is a summary of the allegations M.A. reported to the police:
M.A. placed a Snapchat story [a ride share procedure] requesting a ride for herself and her female friend. M.A. and her friend are in school together and have known each other since the age of 13.
A man, unknown to them, responded to this story indicating he could pick them up.
M.A. provided a description of this man.
Instead of transporting the two women to Clifton Hill in Niagara Falls, as requested, he drove them to his home.
At the home, another male joined the group.
M.A. consumed drinks prepared by the man and became intoxicated.
M.A. asked to go to the bathroom but ended up in a bedroom. She remembers sitting on a bed and having her pants removed by the man. She said “no”.
Although M.A. has no memory of this, she was later told by her female friend that after she found herself in the bedroom with the man, the friend banged on the locked door and tried unsuccessfully to gain entry to the bedroom.
M.A’ s only memory after having her clothes removed is arriving at her home. Within a day or two of this incident, M.A. and the man exchanged Snapchat messages. The man told M.A. she had arrived home at 9:30 PM. M.A. does not accept this as her mother told her she had arrived home after her curfew.
After arrival at home, M.A. realized she had physical signs of sexually activity, went to the hospital, and consented to a sexual assault kit.
6This is a summary of the allegations K. B. reported to the police:
K.B. went to a bar and was introduced to “David”, a stranger, by the through a mutual male friend.
K.B. and her male friend went outside to smoke marijuana. They were followed by the accused, and all went to his motor vehicle. K.B. felt comfortable doing so as she was with a friend. She did not realize that going for a smoke in this car would mean leaving the area.
David transported the group to his home. He gave them a tour of this home. During the tour the three people went into a bedroom. David told K.B.’s friend to go get something. David then locked the bedroom door.
David told K.B. to sit down and take off her clothes. Instead, she stood up but was pushed back onto the bed.
K.B. was confused. She said “no” and began to resist as David removed her clothes.
K.B.’s male friend tried unsuccessfully to gain entry to the bedroom
David had sexual intercourse with K.B.
David transported K.B. and her friend back to the bar.
At the time of these events, K.B. was 18 years old
David looked to be in his early thirties.
K.B. provided a description of David. This description is like the one provided to the police by M.A. about the man who responded to the share ride request.
7As a result of swabbing M.A.’s internal and external vaginal, a DNA hit matched the profile of the accused. Based on this test result, as well as other evidence, the Crown alleges that the accused is the one who sexually assaulted both complainants.
8LEGAL PRINCIPLES
9Evidence of prior or other bad conduct, or criminal acts, by an accused is presumptively in admissible. It can only be admitted if it relates to an issue other than general disposition. The onus is on the Crown to establish, on a balance of probabilities, that the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception. This is sometimes called similar fact evidence. This test applies where the similar fact evidence is extrinsic (evidence that falls outside the counts before the court) or count to count (evidence that is already admissible for specific counts but may be relied upon, as similar fact evidence, in relation to other counts on a multi-count indictment). The present motion deals with count to count. If the test is not met, evidence can only be used on the count to which it relates.
10The leading case is R. v. Handy, 2002 SCC 56. The Supreme Court noted that the probative value of the similar fact evidence arises because it supports double inferences; namely that the accused has a particular propensity to engage certain conduct and that the accused engaged in that very conduct in the alleged offence(s). This evidence is admissible because the force of similar circumstances defies coincidence or other innocent explanation. The inferences sought must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence. Admissibility is determined by a consideration of the relevance and probative value of the evidence, the potential for “moral” or “reasoning” prejudice, and whether the probative value outweighs the potentially prejudicial effects having regard to all the circumstances. See: paragraphs 26-29, 42, 47.
11In this assessment the purpose for which the evidence is being proffered is critical. The probative force of similar fact evidence is its ability to advance or refute a particular issue at trial; that is, its relevance. Whether a piece of evidence will be relevant depends upon the facts alleged and the defences advanced or reasonably anticipated. Probative value, like relevance, cannot be assessed in the abstract. See: Handy at paragraphs 69-70, 73-74 and R. v. MacDonald, 2017 ONCA 568 at paragraphs 66, 80
12The connectedness or nexus between the similar act(s) and the conduct for which the accused stands charged is central to the analysis. At paragraph 82 in Handy the Supreme Court referred to the following factors:
The nature and strength of the similar fact evidence;
Proximity in time of the similar acts (a greater lapse of time tends to undermine the premise of continuity of character or disposition; remoteness in time may also affect relevance and reliability);
Extent to which the other acts are similar to the complainant’s allegations;
The objective improbability of coincidence;
Number of occurrences of the similar acts;
Circumstances surrounding or relating to the similar acts;
Any distinctive features unifying the incidents;
Intervening events;
The relative importance of the issue to which the evidence relates; and
Any other factors which would tend to support or rebut the underlying unity of the similar acts.
13The analysis must also consider dissimilarities between the acts. This is not a counting exercise. Rather, it is an assessment of the persuasive degree of connection between the similar fact evidence and the offence charged. See Handy at paragraph 123
14Prejudice refers to impermissible reasoning. The dangers have been framed this way: Moral prejudice – The risk that the trier will engage in the forbidden chain of reasoning, relying on the accused’s general disposition or bad character to support an inference of guilt – and Reasoning prejudice – the risk that the trier of fact will be confused, or distracted, by the multiplicity of incidents. See: Handy at paragraphs 31, 56, 71, 100, 139 and MacDonald at paragraph 83.
SUBMISSIONS
15In written submissions, the Crown argues that the similar fact evidence is relevant to these issues:
To prove the actus reus occurred, including through a pattern of behaviour on the part of the accused based on R. v. Handy’s “double inferences” or through motive: R. v. T.C., 2005 CanLII 371 (ON CA), [2005] O.J. No. 24 (C.A.); R. v. Finelli, [2008] O.J. No. 2242 (S.C.J.); R. v. Morin, [2005] O.J. No. 4402 (C.A.); R. v. S.C., 2018 ONCA 454; R. v. C.K.C., 2008 ONCJ 513; R. v. Brown, [2006] O.J. No. 5276 (C.A.); R. v. P.S., 2007 ONCA 299; R. v. D.S.F., 1999 CanLII 3704 (ON CA), [1999] O.J. No. 688 (C.A.).
To prove the accused had the requisite mens rea, including through proof of motive and/or animus towards the complainant: R. v. C.K.C., 2008 ONCJ 513; R. v. Stubbs, 2013 ONCA 514; R. v. Carroll, 2014 ONCA 2; R. v. Moo, 2009 ONCA 645.
To negate the defence of innocent association or accident. When the accused admits that the alleged act occurred but claims that he acted with innocent intent, evidence that other persons allege similar impropriety may be admissible to rebut that position, based on R. v. Handy’s “double inferences”: R. v. F.F.B., 1993 CanLII 167 (SCC), [1993] S.C.J. No. 21; R. v. Moore, 1994 CanLII 8730 (ON CA), [1994] O.J. No. 1685 (C.A.); R. v. MacDonald, 2017 ONCA 568; R. v. W.S., 2004 CanLII 33348 (ON CA), [2004] O.J. No. 4164 (C.A.); R. v. Brown, [2006] O.J. No. 5276 (C.A.).
To rebut recent fabrication or implausibility of acts. Where the defence points to a triggering event to say that the complainant fabricated the complaint (in response to that event), similar fact evidence (of similar conduct by the accused toward the same complainant) may be admitted in order to refute this claim. Similarly, where the defence attacks the credibility of the complainants on the basis that the allegations are implausible (e.g. that the accused would never commit these offences in circumstances where people were nearby), other discreditable conduct may be relied on to dispute this (e.g. by showing that he routinely exposed himself in circumstances where others may have seen him): R. v. G.R., [1993] O.J. No. 600 (C.A.); R. v. C.J.P., [2004] O.J. No. 1531 (C.A.).
16The Defence points out that probative value goes to proof of an issue; prejudice goes to fairness of the trial. Where probative value proceeds, prejudice does not recede. Counsel brought several decisions to my attention in support of the argument that the Crown motion should fail. The Defence position is this: The link between the proposed similar fact evidence is weak. Moreover, while this evidence may be probative but it does not establish a unique pattern. It is generic. The only inference is one of general disposition. There is a danger of moral and reasoning prejudice.
ANALYSIS
17The DNA results leaves little doubt that sexual activity occurred between the accused and one of the complainants. The Crown has persuaded me that the proposed similar fact evidence reveals distinctive features that demonstrate a common pattern, making coincidence objectively improbable. There is no risk of collusion. The evidence is relevant to the issues of identity, consent, actus reus and mens rea. Concerns about prejudice relate to impermissible reasoning and trial distraction. In judge-alone trials, these risks are reduced. In any event, the proposed evidence is more probative than prejudicial.
18In coming to my conclusion, I note that the following similarities and unique features in the proposed evidence can support these inferences:
The accused, a man in his early thirties, is a stranger to the complainants.
The complainants were both young women at time: K.B. was 18 years old. M.A. was in school and subject to a parental curfew.
The accused transported the complainants to his home under false pretences (a ride share to Niagara Falls/smoking marihuana in his motor vehicle).
The accused also brought a friend of each complainant to his home. This gave comfort to the complainants.
Once in the home, the accused isolated the complainants in a bedroom.
The respective friends of the complainants were unsuccessful in rescuing them because the accused had locked the door.
The accused removed the complainant’s clothing and engaged in sexual activity with them.
After the sexual activity the accused transported the parties back to the place where he had first met the complainants.
19There are dissimilarities to consider. The method of contact is not the same; snapchat vs meeting in a bar. More significant is that there is a gap in time between the allegations; March 2022 with respect to K.B. and May 2024 in the case of M.A. These considerations do not undermine the nature of the evidence that may prove a core pattern of opportunistic isolation and sexual assault.
RESULT
20The motion by the Crown with respect to cross-count similar fact evidence is allowed. The severance motion is dismissed. There will be one trial with respect to both complainants.
21I close on an obvious point: I have found that the similar fact evidence is relevant to the issues of identity, consent, actus reus and mens rea. It does not follow that this evidence is dispositive of those issues. That decision is the subject of a nine-day trial at which the Crown carries a greater burden of proof.
Released: December 22, 2025
Signed: Justice J. De Filippis