WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(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).
486.4(2) 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.
486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
Court Information
Court of Appeal for Ontario
Date: 2017-09-29
Docket: C60778
Panel: Rouleau, Trotter and Paciocco JJ.A.
Parties
Between
Her Majesty the Queen Respondent
and
Jeffrey Wilkinson Appellant
Counsel:
- Delmar Doucette and Andrew Furgiuele, for the appellant
- Michael Fawcett, for the respondent
Heard: May 17, 2017
On appeal from the conviction entered on April 26, 2014 by Justice Gordon D. Lemon of the Superior Court of Justice, sitting with a jury.
Decision
Trotter J.A.:
A. Introduction
[1] The appellant was convicted of multiple sexual offences against his girlfriend's daughter and four of her friends. All of the victims were primary school girls. All of them were between 10 and 12 years old when they first disclosed the abuse. The victims were rarely, if ever, violated alone; offences were committed in the presence of some, if not all, of the others. When they were abused, the victims were told to remove their bottom clothing only.
[2] The appellant argues that the trial judge erred by allowing the jury to engage in similar fact reasoning as between the victims. Specifically, he submits that the Crown failed to discharge its burden to prove that the evidence of the victims was not tainted by unintentional collusion. The appellant also complains that the trial judge failed to consider or misapprehended evidence on this issue.
[3] For the following reasons, I would dismiss this appeal.
B. The Facts
[4] The appellant originally faced a 20-count indictment, involving seven complainants. He was acquitted on charges related to two complainants.
[5] The case has its origins in the appellant's relationship with his former girlfriend and her daughter, N.M. They lived together between 2006 and 2009. Except for the counts involving the complainants that resulted in acquittals, N.M. was present when all of the offences were committed.
(1) Evidence of N.M.
[6] N.M. testified that the appellant sexually assaulted her when he lived with her mother. The appellant sexually assaulted her friend D.A. around the same time. N.M. said that the appellant licked and rubbed his penis on their vaginas; he made them put it in their mouths. The girls were asked to remove their bottom clothing, but not their tops. She testified about a similar incident in the appellant's van with De. A. The girls masturbated the appellant while he touched their vaginas. Their tops remained on.
[7] After the appellant's relationship with N.M.'s mother ended, he eventually moved to a different house. At the new location, the sexual abuse involved a number of the victims at the same time. They took turns masturbating the appellant and putting his penis in their mouths. Their tops remained on.
(2) Evidence of D.A.
[8] D.A., who was 14 at the time of trial, testified that, on several occasions, the appellant touched her vagina with his hands, penis and mouth. She was told to touch his penis with her hand and to put his penis in her mouth. N.M. was always present when this happened. Their tops remained on the whole time. D.A. said the appellant threatened her if she told anyone.
(3) Evidence of De. A.
[9] De. A., who was 12 at the time of her testimony at trial, also testified about the incident in the appellant's van with N.M. The appellant sexually assaulted her on another occasion, when she was at his residence with N.M.
[10] De. A. testified about other incidents at the appellant's residence that involved herself, N.M., M.G., and A.G. Sometimes two of them would be involved; at other times, four. They touched the appellant's penis. Some of them put it in their mouths. De. A. testified that her top never came off during these incidents. She also said that the appellant threatened her.
(4) Evidence of M.G. and A.G.
[11] M.G. and A.G. are sisters. The appellant rented an apartment above their residence.
[12] M.G. was 13 at the time of trial. She described events that occurred with N.M., A.G. and De. A. M.G. testified that the appellant kissed them and had N.M. masturbate him. The appellant unsuccessfully tried to penetrate N.M., A.G. and herself. M.G. said that her top never came off.
[13] A.G. was 11 at the time of the trial. She said that she went into the appellant's room with N.M. and A.G. The girls were instructed to line up in front of the appellant. N.M. told the girls to do things involving their vaginas and the appellant's penis. She said that hands and mouths were involved. A.G. was instructed to kiss the appellant. She touched his penis, but did not think that she put her mouth on it. The appellant put his penis and mouth near the three girls' vaginas. A.G. testified that the appellant took her pants off in the line-up. A.G. also saw N.M. and M.G. touch the appellant's penis with their hands and mouths.
(5) Evidence of A.M. and D.W.
[14] A.M. is the stepsister of A.G. and M.G., and was living with them at the time. D.W. was A.M.'s friend. Both were 16 at the time of trial. They testified that they were in the appellant's room on one occasion, and he offered to pay them for oral sex. They refused. The appellant was acquitted on these counts.
(6) The Disclosure
[15] The incidents came to light when N.M.'s mother saw the appellant's text messages on her daughter's phone. She thought that they were inappropriate. She asked her daughter about them, but N.M. denied that anything had happened. N.M. eventually disclosed the sexual abuse. N.M.'s mother was shocked by the disclosure, but needed time to consider the implications of what she had been told. She told N.M. not to tell anyone in the meantime.
[16] N.M. did tell someone. She called D.A. and told her, "My mom knows." This led D.A. to tell her own mother, who called N.M.'s mother two days after the initial disclosure. The police investigated. They told all involved not to talk about the allegations. However, N.M.'s mother acknowledged that there were times when her daughter wanted to talk about things. At that point she learned of the involvement of some of the other girls.
[17] D.A. recounted the phone call when N.M. told her, "My mom knows." It took about 10 minutes. She denied that N.M. told her exactly what she reported to her own mother. D.A. promptly disclosed to her mother what had happened.
(7) Collusion
[18] Collusion was an important issue at trial. It was thoroughly canvassed in the cross-examinations of the victims, and in the examination of other witnesses, including the parents of some of the victims.
[19] The evidence as a whole revealed communication between the victims, especially N.M. and the other victims. N.M. denied that she ever asked any of the other victims to lie. D.A. said that she was "super close" with N.M. She did not know what N.M. had told her mother about the allegations. D.A. testified that N.M. never asked her to lie.
[20] N.M. and M.G. admitted that they created a fake Facebook page that made it look like the appellant was attempting to contact De. A. N.M. said that she knew that the appellant could get into trouble if he contacted any of the victims. She said she did it, not to get the appellant into trouble, but to trick De. A. N.M. said she did not know if she cared about getting the appellant into trouble. It was meant as a joke.
[21] M.G. testified that she did not like De. A. because she was mean. M.G. said the Facebook page was a joke and she did not care if the appellant got into trouble because of it. M.G. testified that N.M. did not ask her to lie; she told M.G. to tell the truth. N.M. did not give her a story to tell the police.
[22] De. A. testified that she was a "best friend" of N.M. She did not initially tell the police about A.G. and M.G. because N.M. told her that their "dad was going to kill them." By the time De. A. told her father what had happened, she knew exactly what N.M. had told her own mother. De. A. spoke to the police on two occasions. In between statements, she spoke to N.M., who told her what she (N.M.) had told the police. She also told De. A. the type of questions she was asked. They agreed to "get their stories straight." De. A. agreed that N.M. told her to stick to her story, but the story was true. The talk about "getting their stories straight" meant that they would tell the truth and make sure that nothing was left out.
[23] A.G. admitted that, after giving her statement to the police, she spoke to M.G., A.M., and N.M. about the appellant. N.M. told her about the questions she was asked, but she did not tell the others what she told the police. N.M. did not ask A.G. to change her story. A.G. said that the girls told each other their versions. A.G. admitted that she changed her story to the police over time. She did so because she was "not ready" to talk at first. A.G. denied lying.
C. Trial Judge's Ruling
[24] As discussed in more detail below, the trial judge gave lengthy reasons for his decision to allow the evidence of each of the complainant's to be used as similar fact evidence. At trial, defence counsel argued that there was collusion between the complainants, "conscious or otherwise." However, the focus of the defence was that N.M. fabricated the allegations against the appellant, and enlisted the others to lie to support her story.
[25] The trial judge reviewed the evidence of collusion in considerable detail. He ultimately concluded that the Crown had proved on a balance of probabilities that there was no collusion between the complainants.
D. Issues on Appeal
(1) Introduction
[26] The appellant submits that the trial judge erred by: (1) reversing the burden of proof on the issue of unintentional collusion; (2) failing to consider relevant evidence on unintentional collusion; and (3) misapprehending evidence relating to unintentional collusion.
[27] Similar fact rulings are entitled to deference on appeal, especially in the balancing of probative value against its prejudicial effect: see R. v. B. (C.R.), [1990] 1 S.C.R. 717, at p. 738; R. v. Arp, [1998] 3 S.C.R. 339, at para. 42; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73; and R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 153. As Doherty J.A. explained in R. v. James (2006), 80 O.R. (3d) 227 (C.A.), at para. 33:
The process of balancing probative value against prejudicial effect is the trial judge's responsibility. Appellate courts will defer to the trial judge's assessment of the comparative probative value and prejudicial effect of the proffered evidence unless an appellant can demonstrate that the result of the trial judge's analysis is unreasonable, or is undermined by a legal error or a misapprehension of material evidence: see R. v. B. (C.R.) (1990), 55 C.C.C. (3d) 1, at 23-24; R. v. Harvey (2002), 2002 SCC 80, 169 C.C.C. (3d) 576 (S.C.C.), aff'g (2001), 160 C.C.C. (3d) 52 at para. 43 (Ont. C.A.); R. v. Handy, supra, at para. 153.
See also R. v. Cresswell, 2009 ONCA 95, at para. 7.
[28] The appellant does not directly attack the balancing undertaken by the trial judge; instead, he contends that the trial judge committed legal error by failing to apply the proper burden of proof to unintentional collusion, and by misapprehending material evidence.
(2) Collusion and the Burden of Proof
[29] In similar fact evidence cases, at the admissibility stage, the trial judge's main task is to weigh the probative value of the evidence against its potential prejudicial effect. The possibility of collusion may significantly affect this balancing. As Binnie J. said in Handy, at para. 99: "An important element of the probative weight analysis is the issue of potential collusion between the complainant and the ex-wife" (emphasis in original). In Shearing, Binnie J. again identified collusion as a matter related to the "strength of the evidence." As he said, at para. 40:
The theory of similar fact evidence turns largely on the improbability of coincidence. Collusion, by offering an alternative explanation for the "coincidence" of evidence emanating from different witnesses, destroys its probative value, and therefore the basis for its admissibility.
[30] Although collusion is a feature of probative value, it is singled out for special consideration at the admissibility stage. It is not simply part of the overall balancing undertaken by the trial judge; instead, the Crown must disprove the possibility of collusion. Justice Binnie articulated the test in Handy, at para. 112:
Accordingly where, as here, there is some evidence of actual collusion, or at least an "air of reality" to the allegations, the Crown is required to satisfy the trial judge, on a balance of probabilities, that the evidence of similar facts is not tainted with collusion. That much would gain admission. It would then be for the jury to make the ultimate determination of its worth.
[31] The dividing line between cases in which collusion is a live issue, and cases in which it is not, is the presence of an "air of reality." As Binnie J. held in Handy, at para. 111: "The issue is concoction or collaboration, not contact. If the evidence amounts to no more than opportunity, it will usually best be left to the jury." In that case, the Court agreed that there was something more – an air of reality, based on a financial incentive on the part of the complainant.
[32] The Court in Shearing also addressed the issue of collusion. As Binnie J. held, at para. 44:
The evidence here is far more speculative than in Handy. In that case, there was consultation between the complainant and the similar fact witness prior to the alleged offence about the prospect of financial profit. Here, there is some evidence of opportunity for collusion or collaboration and motive, but nothing sufficiently persuasive to trigger the trial judge's gatekeeper function. There is no reason here to interfere with the trial judge's decision to let the collusion issue go to the jury. He instructed the jury to consider "all of the circumstances which affect the reliability of that evidence including the possibility of collusion or collaboration between the complainants". He defined collusion as the possibility that the complainants, in sharing their stories with one another, intentionally or accidentally allowed themselves to change or modify their stories in order that their testimony would seem more similar or more convincing. It was for the jury to make the ultimate determination whether the evidence was "reliable despite the opportunity for collaboration" or that "less weight or no weight should be given to evidence which may have been influenced by the sharing of information". [Italics in original; underline added.]
[33] The trial judge reviewed a number of the governing authorities. He was aware of the threshold the Crown was required to meet when an air of reality of collusion was established. He mentioned this standard several times in his reasons, but in a general way. That is, he did not specify whether he was talking about actual collusion, unconscious collusion, or both. The appellant points to the following passage in the trial judge's ruling and submits that it reveals that he misapplied this burden of proof in relation to unconscious collusion, at paras. 116-117:
Although cross-examined vigorously on this topic, none of the witnesses were shaken in the denial that they had colluded with respect to the allegations. Although some agreed in cross-examination, that before going to the police, they had "got their story straight", all explained that phrase to be entirely appropriate discussions between themselves
The stories told were simple ones to tell; even so, the complainants are children and one would expect that collusion would have become obvious over time. That did not occur here. While there may have been unconscious tainting between the witnesses, there was no evidence that the possibility was so strong as to exclude the evidence. [Emphasis added.]
The trial judge concluded his ruling by saying, "I am therefore satisfied on a balance of probabilities that there was no collusion between the witnesses": at para. 120.
[34] The appellant argues that, while the trial judge properly placed the burden on the Crown to disprove actual collusion, he failed to hold the Crown to the same standard with respect to "unconscious tainting". He contends that the above-quoted passage reveals the trial judge was not satisfied on a balance of probabilities that the Crown had disproved tainting by unconscious collusion.
[35] Read in the context of his reasons as a whole, the impugned passage suggests that the trial judge did not specifically consider whether the Crown met its burden in relation to unconscious collusion.
[36] The trial judge erred in this respect. Although the case was fought largely on the basis of actual collusion, there was clearly an "air of reality" to the assertion of unconscious collusion. The trial judge acknowledged as much in the underscored passage above. The law required that the Crown be held to the same standard of disproving that the evidence was tainted by unconscious collusion on a balance of probabilities.
[37] In fairness to the trial judge, there is a lack of precision in the case law concerning the treatment of unconscious collusion at the admissibility stage. In Handy and Shearing, the Court addressed collusion in its most literal sense. In both cases, it was alleged that the allegations were fabricated, and that two or more witnesses had agreed to proceed with a false story. In its treatment of this issue, the Court used different terminology to describe the same thing. Handy employs the terms "collusion", "actual collusion" and "concoct." Shearing refers to "collusion", "concoction" and "concoct." Neither case directly discusses "unconscious" or "inadvertent" collusion or tainting of similar fact witnesses.[1]
[38] However, decisions from this court support the view that actual collusion and unconscious collusion ought to be treated the same way at the admissibility stage. In R. v. F. (J.) (2003), 177 C.C.C. (3d) 1 (Ont. C.A.), Feldman J.A. discusses both types of collusion, at para. 77:
The trial judge's finding that B.H. was sincere, a "straight shooter", and not influenced by E.T. and the others, fails to take into account that collusion and discussion among witnesses can have the effect of tainting a witness's evidence and perception of events innocently or accidentally and unknowingly, as well as deliberately and intentionally. The reliability of a witness's account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people's stories, which can tend to colour one's interpretation of personal events or reinforce a perception about which one had doubts or concerns. [Emphasis added.]
Collusion can arise both from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events. In this case there was evidence of, or at least the opportunity for collusion in the various discussions regarding the incidents reported by the complainants. Furthermore, taken together with the anger regarding the dismissal and pay issues between one complainant and the appellant and the joint lawsuit by the complainants for damages, there was clearly an air of reality to the possibility of collusion in this case.
It was therefore incumbent on the trial judge, in considering the admissibility of the similar fact evidence, to determine whether he was satisfied on a balance of probabilities that the evidence was not tainted by collusion. In his ruling admitting the similar fact evidence, the trial judge did specifically refer to the fact that the witnesses had discussed some of the evidence with each other. [Emphasis added.]
Ultimately, the case was decided on the basis of inadequacies in the trial judge's instructions to the jury. Nevertheless, this passage supports the conclusion that, when there is an air of reality to conscious or unconscious collusion, the similar fact evidence will not be admissible unless the Crown proves on a balance of probabilities that conscious or unconscious collusion has not tainted the testimony.
[40] Further support for the appellant's position is found in the cases that require trial judges to instruct juries on the possibility of collusion, both actual and unconscious. As Feldman J.A. wrote in F. (J.), at para. 86:
Once admitted, the jury must still be warned to assess the evidence carefully and to consider whether it can be considered reliable given the possibility of deliberate or accidental tainting by collusion among the witnesses.
See also R. v. M.B., 2011 ONCA 76, 267 C.C.C. (3d) 72; and David Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), pp. 367-368 (Final 28-E – Collusion Amongst Similar Act Witnesses).
[41] The respondent argues that the trial judge did not err in dealing with unconscious collusion. It relies on R. v. Dorsey, 2012 ONCA 185, 288 C.C.C. (3d) 62, a case in which the trial judge allowed the jury to consider the evidence of six sexual assault complainants as similar fact evidence. Defence counsel at trial submitted that the evidence of the complainants, who were strangers, was tainted by media reports about the case. The trial judge concluded that there was no air of reality to the suggestion of inadvertent or unintentional collusion. In response to defence counsel's jury address, which stressed the possibility of inadvertent tainting, the trial judge instructed the jury that there was no evidence of collusion that should concern them in assessing the similarities in the accounts of the witnesses.
[42] This court allowed the appeal from conviction, holding that the trial judge erred in her jury instructions on collusion. The respondent relies upon the following passage from the judgment of the court, at para. 29:
Here, it is clear that there was at least some evidence of possible inadvertent collusion, perhaps not enough to deny the similar fact application, but sufficient to raise concerns that the opportunity for tainting of the evidence existed. Put another way, there was at least an air of reality to the possibility of inadvertent collusion. As discussed in Shearing, the trial judge should have left it with the jury to decide the effect that possible collusion may have had on the weight to be assigned to the evidence of the complainants. [Emphasis added.]
[44] I would not attach the same weight to the passage from Dorsey as the respondent urges us to do. The decision did not turn on the question of admissibility. The appeal was allowed on the basis that there was an air of reality and the trial judge erred in taking away from the jury any consideration whatsoever of the potential for inadvertent collusion or tainting.
[46] While the trial judge erred in the application of the burden of proof, I would apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 to dismiss the appeal. No substantial wrong or miscarriage of justice was occasioned by the trial judge's legal error. I reach this conclusion for the following reasons.
[47] First, the real issue at trial was whether N.M. fabricated the allegations against the appellant and then enlisted the assistance of the other complainants to further her campaign. The similar fact application did not turn on the minutiae of the complainants' accounts; it was fought on the basis of "did this really happen?"
[48] It is clear from the trial judge's ruling that he was alive to the possibility of unconscious collusion. He considered it in weighing the probative value of the evidence against its prejudicial effect and determined that it did not warrant exclusion. Far from not screening for unconscious collusion at all, the trial judge satisfied himself that it was safe to leave the matter with the jury.
[49] The similar fact ruling related to witnesses whose evidence was already before the jury. In other words, the ruling did not relate to the admissibility of witnesses who the jury would not otherwise have had heard testify. The jury was properly instructed on how to assess the credibility and reliability of all of these witnesses. Their evidence was reviewed in great detail in the trial judge's final instructions.
[50] Finally, the trial judge provided the jury with appropriate guidance on how the evidence could be used for similar fact purposes. This included an instruction on the need to be aware of the possibility of conscious and unconscious tainting. His instructions were not objected to at trial; they are not challenged on appeal.
[51] I would not allow the appeal on this basis.
(3) Failing to Consider and Misapprehending Evidence of Unintentional Collusion
[52] The appellant submits that the trial judge failed to consider certain aspects of the evidence that impacted on unintentional collusion, while misapprehending others. Although they were raised as separate grounds of appeal, I address them together because they essentially amount to the same complaint. This argument really goes to the heart of the balancing undertaken by the trial judge. It is at this juncture where deference should be most potent.
[53] To succeed on this basis, the misapprehension must be relevant to a material issue: see R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538. As Binnie J. held in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2: "The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge."
[54] I agree with the respondent that none of the misapprehensions identified by the appellant are material in the sense considered in the case law; instead, the appellant complains that the trial judge failed to wade among the factual minutiae of seven young witnesses during a month-long jury trial.
[55] In his factum and in oral argument, appellant's counsel placed great emphasis on: (a) the internal inconsistencies in the testimony given by each of the complainants; (b) the inconsistencies between that testimony and the complainant's prior statements to the police and at the preliminary inquiry; and (c) the fact that certain details of the allegations between the complainants were mutually inconsistent. The appellant tries to link these testimonial features to the similar fact evidence ruling. However, they are in reality arguments meant to attack the reasonableness of the jury's verdicts and an attempt to retry the case on appeal.
[56] The trial judge spent a great deal of time focused on collusion among the complainants. Indeed, this was the focal point of his ruling. He considered the evidence of the witnesses in great detail. He determined that some inconsistencies between the witnesses were important, while others were not. The trial judge's findings were available to him on the record and should not be disturbed on appeal: see R. v. Roy, 2017 ONCA 30, 136 W.C.B. (2d) 103, at para. 20.
[57] I further agree with the respondent that the failure of the trial judge to mention certain pieces of evidence does not lead to the conclusion that he failed to consider them. The trial judge released his reasons on the similar fact ruling a few months after delivering his final instructions to the jury. However, he made his similar fact ruling (with reasons to follow) shortly before instructing the jury. The final instructions included a 10-page, 40-paragraph summary of the evidence under the heading, "Collusion Among Similar Act Witnesses." Defence counsel did not object to this aspect of the jury charge. In the circumstances, it is difficult to see how the trial judge could have failed to properly consider this evidence when making his similar fact ruling. His subsequent reasons confirm that he did just that.
[58] I would reject this ground of appeal.
E. Conclusion
[59] I would dismiss the appeal.
Released: "PR" September 29, 2017
"Gary T. Trotter J.A."
"I agree. Paul Rouleau J.A."
"I agree. David Paciocco J.A."
[1] However, I note that, in Shearing, at para. 44, Binnie J. rehearses the trial judge's definition of collusion, without adverse comment, including, "intentionally or accidentally allow[ing] themselves to change or modify their stories."
