Court File and Parties
COURT FILE NO.: 16-19545 DATE: 2018/10/26 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Crown – and – Kenneth Gordon Defendant
COUNSEL: Lisa Miles, for the Crown Robert Carew, for the Defendant
HEARD: May 10, 2018 (at Ottawa)
APPLICATION TO ADMIT SIMILAR ACT EVIDENCE
KANE J.
[1] The Crown in this this application seeks leave to present evidence of discreditable non-charged conduct by Mr. Gordon against others similar to the conduct charged, pursuant to rule 30.01(b) of the Criminal Proceedings Rules.
Background
[2] Mr. Gordon is defending 5 charges that he between January 1, 1988 and December 31, 1998:
(a) sexually assaulted the complainant, contrary to s. 271(1) of the Criminal Code;
(b) invited the complaint then under 14 years of age to touch his body with her hand for a sexual purpose, contrary to s. 152 of the Criminal Code;
(c) touched with his hand for a sexual purpose the body of the complainant who was then under fourteen years of age, contrary to s. 151 of the Criminal Code;
(d) assaulted the complainant, contrary to s. 266 of the Criminal Code; and
(e) used a belt as a weapon in assaulting the complainant, contrary to s. 267(a) of the Criminal Code.
[3] The complainant is the defendant’s daughter and was between 7 and 15 or 16 years old during the 1988 to 1998 time period charged.
[4] It is alleged the defendant:
(a) touched the complainant’s breast and groin areas with his hand and rubbed his penis against her as to count 1, and when the complainant was under 14 years of age as to count 3;
(b) invited the complainant who was then under 14 years of age to touch him for a sexual purpose as to count 2;
(c) struck the complainant with his hands and kicked her on multiple occasions as to count 4; and
(d) struck the complainant using a belt as a weapon as to count 5.
[5] The complainant alleges she did not report or object to the alleged misconduct as:
(a) she believed reporting to authorities would change nothing;
(b) reporting to authorities or objecting would not change her father’s authority and on-going treatment of her; and
(c) she feared objecting to her father would result in him physically assaulting her siblings which she states occurred on some occasions.
[6] The complainant’s brother KG is being called as a witness independent of this application to testify he saw the defendant slap and hit the complainant. This is not similar fact evidence.
[7] The Crown seeks leave to introduce discreditable similar fact testimony by KG that the defendant frequently assaulted him and his other siblings. He would testify that the defendant:
(a) frequently struck him and his other siblings with his hands, his feet and with a belt, which caused cuts and bruising to KG;
(b) once struck his other sister with a paddle;
(c) on one occasion shot a pellet gun at him and his brothers; and
(d) once burnt his arm with a hot frying pan.
[8] On October 21, 2017, the Crown withdrew one count of assault causing bodily harm under s. 267(b) of the Criminal Code against the defendant for allegedly assaulting and burning KG with a frying pan between September 1 and September 30, 1997.
Crown Position
[9] While accepting that evidence of alleged discreditable conduct against the other siblings is normally inadmissible, the Crown seeks leave to introduce such evidence as to the charges of assault and use of a weapon in counts 4 and 5 in order to:
(a) complete the narrative in respect to the events as described by the complainant;
(b) support the credibility of the complainant in proving the actus reus of those two charges;
(c) show a pattern of similar violent behavior by the defendant towards his children when they were young;
(d) show a distinct propensity by the defendant to use physical violence, including the use of a weapon such as a belt, a pellet gun and a frying pan, to discipline his children;
(e) provide context and an explanation for why the complainant did not come forward with her allegations at the time or sooner;
(f) rebut a defence of innocent association or recent fabrication;
(g) assist the court in providing context and an explanation why the complainant did not come forward with the obligation sooner or at the time of abuse; and
(h) assist in assessing the defendant’s denial of culpability.
[10] The Crown alleges the similar fact evidence of the defendant’s assault of the complainant’s siblings:
(a) has high probative value to show an extended pattern of similar behavior and circumstances which defies logic that the similarity of events are only coincidence;
(b) is distinctive in that those acts of physical abuse occurred in the same location and under similar circumstances as the events charged;
(c) is relevant as to having physically assaulted the other children in distinctly similar circumstances to those alleged in counts 4 and 5;
(d) bears certain similarities to the alleged conduct in counts 4 and 5 as the complainant and KG were both children living in the same house with the defendant at the time of the abuse, the physical abuse including the use of a belt are of similar nature, the defendant regularly assaulted his children as his preferred method of discipline while they were growing up and like the complainant, KG as a child lived in fear of the defendant and did not disclose the physical abuse to authorities due to fear of retaliation by the defendant; and
(e) accordingly shows a specific propensity by the defendant to use violence including the use of weapons such as belts, a pellet gun and a frying pan to discipline the children when they were growing up.
[11] The Crown therefore submits that:
(a) despite the prejudicial effect of the similar fact evidence, the connecting factors and the underlying unity amongst all the siblings is so strong as to outweigh the prejudice of such similar fact evidence; and
(b) such discreditable conduct against the other siblings is relevant in corroborating the complainant’s explanation as to why she did not report the misconduct alleged in counts 4 and 5 earlier, namely her belief that complaining about it to others would have led the defendant to further punish her siblings and no one would have halted his physical abusive of herself and her siblings.
[12] The Crown submits such discreditable misconduct against the other children is not prejudicial as:
(a) both the charges and similar facts occurred at the same time and in similar circumstances;
(b) the similar fact evidence is similar to and not more serious than the misconduct alleged in counts 4 and 5;
(c) KG will be testifying at trial on other matters and his testimony therefore will not lengthen the proceedings in any way; and
(d) the risk of prejudice is reduced as its introduction will be in a judge alone trial and not involve the risk in a jury trial.
Defence Position
[13] The defendant states counts 4 and 5 were laid only after the Preliminary Inquiry which thereby prevented him from cross-examining the complainant thereon.
[14] The defence submits the Crown may not have KG introduce such alleged similar fact evidence because:
(a) the complainant is prohibited from testifying that her father hit her siblings in any way, with his hand, a paddle or otherwise;
(b) as a corroborating witness, KG may not therefore corroborate the complainant’s inadmissible evidence as to the defendant striking her siblings, nor his more serious allegations that the defendant burnt him with a frying pan, shot a pellet gun at him and his brothers and struck his other sister with a paddle; and
(c) the Crown may not introduce similar fact evidence that was the subject of a charge subsequently withdrawn to prove that the defendant is more likely to have assaulted the complainant and in an attempt to prove the defendant’s guilt in spite of the withdrawn charge of assaulting KG.
[15] The defence submits that KG’s testimony is not similar fact evidence because it is strikingly different in that:
(a) KG’s allegations that the defendant struck him with a hot frying pan, shot a gun at he and his brothers and struck the other sister with a paddle are more serious acts of misconduct and different than the complainant’s allegation that the defendant struck her with his hand and foot; and
(b) the complainant described the striking of herself and her siblings occurred randomly without reason, whereas KG testified the striking by the defendant was his form of disciplining the children.
[16] The defendant submits:
(a) the proposed evidence of misconduct against the complainant’s siblings is a prohibited invitation to use propensity reason, namely the defendant had a propensity to strike his children and if he struck the complainant’s siblings, he likely also struck the complainant thereby corroborating the complainant’s allegations in counts 4 and 5. This propensity reason is highly prejudicial to the defendant, particularly as it is proposed that KG will testify as to misconduct against other siblings who will not testify and may not therefore be cross-examined;
(b) the Crown’s submission that the misconduct against the other children is needed to complete the narrative is incorrect as the alleged misconduct against the other children is not part of the narrative as to the alleged misconduct against the complainant; and
(c) the proposed similar fact evidence:
(i) constitutes reasoning prejudice in that it will distract the court’s attention from and cause confusion as to the issues in charges 4 and 5;
(ii) will render the trial unfair or occasion irreparable prejudice to the defendant as the Crown does not intend to call the other siblings as witnesses, thereby preventing the defence from cross-examining them as to such allegations, including whether such acts were random or as part of discipline;
(iii) is a veiled attempt to show that the defendant has a propensity to commit similar acts against the complainant;
(iv) gives rise to the possible implication that the defendant was guilty of the withdrawn charge in relation to KG; and
(v) would cause extreme disadvantage to the defendant.
[17] The defence submits that the proposed evidence that the defendant struck the complainant siblings in addition to KG would impair his defence of the charges.
Analysis
General Exclusion
[18] Similar fact evidence is presumptively inadmissible. It will not be admitted unless the Crown establishes on a balance of probability that its probative value in relation to a specific and important issue in the case outweighs its potential prejudice: R. v. Handy, [2002] 2 S.C.R. 57, paras. 31 and 55.
[19] Evidence of misconduct beyond the charges and which does no more than blacken the character of the accused is inadmissible. That exclusion generally prohibits circumstantial character evidence as proof of conduct, namely to allow an inference from the similar facts that the accused has the propensity or disposition to do the type of act charged and is thus guilty of the charge. The dangers thereof are:
(a) reasoning prejudice, namely that the jury may be confused by the multiplicity of incidents and put more weight than is logically justified on the similar fact evidence; and
(b) moral prejudice, being the risk of conviction based on or for bad character or personhood: Handy, paras. 31, 39 and 40.
[20] Evidence of only general propensity or disposition inferred from similar facts is generally excluded due to its potential for prejudice, distraction and time consumption, which disadvantages will almost always outweigh its probative value: Handy, para. 37.
Narrow Exception
[21] Prejudicial similar fact evidence of discreditable character and propensity evidence about the accused beyond the misconduct charged is generally inadmissible unless the prosecution on a balance of probabilities establishes that:
(a) the probative value of such evidence as to a particular issue in the case outweighs its potential prejudice and thereby justifies its admission;
(b) the similarities or common characteristics between the conduct charged and the similar fact evidence are such that, absent collusion, it would be an affront to common sense to suggest that the similarities were due to coincidence;
(c) the strength of the similar fact evidence must outweigh the reasoning prejudice and moral prejudice;
(d) the probative value will exceed prejudicial weight where the force of similar circumstances defies coincidence or other innocent explanation; and
(e) the inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikeliness of coincidence: Handy, paras 41 42 and 47, 50, 51, 64.
[22] Propensity reasoning on its own is not prohibited and is usually inevitable. What is prohibited is propensity reasoning based solely upon the general bad character revealed through the similar fact evidence of discreditable conduct: Handy, para. 68.
[23] The probative value of similar fact evidence relates to the proof of a trial issue. The prejudicial effect thereof however relates to trial fairness. Probative value and prejudice pull in opposite directions on the issue whether it be admitted. That conflict must be resolved in the admissibility decision: Handy, paras. 148 and 149.
[24] The fact the similar fact evidence may tend to show the commission of a different offence is not a bar to its admission: Handy, para. 44.
Relationship to Relevant Trial Issue
[25] General disposition of the accused is not a trial issue. General discreditable disposition or character evidence independent of a trial issue is a prohibited purpose and creates moral prejudice: Handy, paras. 71 and 72.
[26] The probative value of the similar fact evidence is dependent upon its ability to advance or refute a disputed relevant trial issue derived from the facts alleged and/or the defences advanced or reasonably anticipated: Handy, paras. 73 and 74.
[27] Identifying credibility at large as the issue to which the similar facts are linked may be too broad and risks admitting evidence of mere disposition.
[28] Credibility is an issue in most criminal trials. Evidence that blackens the character of the accused may enhance the complainant’s credibility. The question is which of the constituent elements of the offence charged does the credibility issue relate to for which the Crown seeks introduction of the similar fact evidence: Handy, paras. 115 -120.
[29] Issues at trial to which the similar fact evidence may be relevant and probative include:
(a) whether the complainant’s account of the abuse is credible; and
(b) whether the actus reus of the offences charged in fact occurred: R. v. J.W., 2013 ONCA 654, para. 41;
or as expressed in R. v. B.(R.) (2005), 2005 ONCA 30693, 77 O.R. (3d) 171 (Ont. C. A.) paras. 10-11:
The question to be decided was whether the sexual assaults occurred. The similar fact evidence was probative of the actus reus of the offences, which in turn depended on the credibility of the complainant’s evidence about the assaults…. (as quoted in R. v. T.B., 2009 ONCA 177 at para. 24.)
[30] Evidence that the defendant struck the complainant’s siblings with his hands and a belt is not evidence that he also struck the complainant with his hands and with a belt.
[31] The issue as sometimes expressed is whether the accused’s conduct with the similar fact witness(es) was indicative of a situation-specific pattern of behavior, making it more likely that he/she had engaged in the same conduct with the complainant: J.W. para. 49.
[32] Where an issue is undisputed, similar fact evidence in relation to that issue is therefore irrelevant and not admissible in relation thereto: Handy, para. 74.
[33] The central issue as to count 4 is whether the defendant intentionally applied force to the complainant, and as to count 5, whether he did so with a weapon. The defendant’s plea of not guilty to charges 4 and 5 places in issue the complainant’s credibility as to those allegations.
[34] As in J.W. and B.(R.), the Crown seeks introduction as to whether the alleged assault in counts 4 and 5 occurred and the complainant’s credibility as to those allegations. Those are relevant important issues in this trial.
[35] There is a further anticipated trial issue which the similar fact evidence of the defendant striking the other siblings relates to. The complainant testified she generally complied with the directions of her father and did not report the alleged misconduct to authorities because her father would become annoyed and she feared he would retaliate if she objected by assaulting her siblings, which she states occurred. Her similar fact evidence therefore is related to the anticipated defence of recent fabrication.
[36] The complainant underwent considerable cross-examination as to the fact that she only first made these charged allegations some 20 years later at the same time as she suffered a nervous breakdown.
[37] The defendant’s clear position is that falsity of these allegations is demonstrated by:
(a) the fact that they were never communicated for two decades because the events never happened; and
(b) are only communicated by this 33 year-old complainant during the course of her admitted mental breakdown.
[38] The silence or communication by the siblings of the defendant so striking them relates to the issue of the complainant’s silence and the defence theory this allegation is merely a by-product of a mental breakdown.
[39] The Crown has established the similar fact evidence as to the defendant allegedly assaulting the other siblings relates to the above relevant trial issues, namely:
(a) credibility of the complainant as to whether the events charged occurred;
(b) recent fabrication associated to the complainant’s mental breakdown at the time; and
(c) failure to report the alleged physical assaults by the father at the time.
Proof of Prior Offence
[40] Similar fact evidence may not be introduced to prove that an accused committed a prior offence or was in fact guilty of a prior charged offence that did not proceed to trial: R. v. Scida, 2014 ONCJ 156, para. 23.
[41] The above reasons for introduction of the proposed similar fact evidence regarding the identified relevant trial issues exist and are unrelated to whether the defendant committed a prior charged but withdrawn accusation of assaulting KG.
[42] Introduction of the proposed similar fact evidence is not for the above prohibited purpose.
Probative Value
[43] Similar fact evidence will generally be probative where the trier of fact is able to legitimately infer that coincidence is objectively improbable on the basis of the defendant’s prior similar misconduct in closely comparable circumstances: R. v. J.W., 2013 ONCA 654, para. 41.
[44] It could be unique if the defendant struck the four other children but not the complainant.
[45] Determination of sufficient probative value to be admitted requires evaluation of the degree of similarity of the alleged acts to decide whether the Crown has proven the objective improbability of coincidence: Handy, para. 105.
[46] The strength or probative value of the similar fact evidence may be assessed by identifying and considering:
(a) the strength, reliability, credibility and “air of reality” of that evidence, including any evidence of collusion: Handy, paras. 102, 112 and 134;
(b) whether or not such evidence extends beyond mere propensity to and whether it relates and is relevant as required to an existing trial issue derived from the alleged facts and the defences advanced or reasonably anticipated, including the importance of that issue to the issues at trial: Handy, paras. 51 and 69-75;
(c) the factors which connect or distinguish the similar fact evidence from the charged conduct to a trial issue other than propensity: Handy, para. 51; and
(d) whether or not the two set of facts are connected. Connecting factors include consideration of matter such as:
(i) proximity in time;
(ii) whether the similar fact evidence is distinctively similar in detail;
(iii) the number of occurrences of the similar acts;
(iv) the circumstances surrounding or relating to the similar acts;
(v) distinctive features unifying the similar acts and the offence charged; and
(vi) any other events or factors which tend to support or rebut the underlying unity of the similar acts and the offence charged: Handy, paras. 51 and 76 – 84, as summarized in R. v. K. (C.P.), 2002 ONCA 23599, [2002] O.J. No. 4929 (O.C.A.), para 30.
[47] Connectedness is the principal factor as to probative value, namely the degree of distinctive features or uniqueness as to the issue in question: Handy, para. 76.
[48] Not all connecting factors are required or exist in each case: Handy, para. 84.
[49] Similarity does not require strong peculiarity or unique distinctiveness between the events being compared, however, the presence of “calling cards”, “signatures”, “hallmarks” or “fingerprints” are persuading and describe propensity at the admissible end of the spectrum because the pattern of circumstances in which the accused is disposed to act in a certain way are so clearly linked to the charged offence that the possibility of mere coincidence, mistaken identity or mistake in the character of the act is so slight as to justify consideration of the similar fact by the trier, since it is no longer “pure propensity” or “general disposition”: Handy, para. 81 and 91.
[50] Not every dissimilarity is fatal. Similar fact evidence need not be conclusive as to the issue: Handy, para. 97.
[51] The search for similarities is a question of degree. Substantial dissimilarities however may weaken probative strength and aggravate prejudice by compounding confusion and distraction: Handy, para. 127.
[52] Where the similar fact evidence is introduced as to the issue of identity, distinctive features amounting to a “signature” may be required. Less cogent similarities may be sufficient to render the similar fact evidence admissible if its introduction relates to the issue of actus reus: J.W., para 54 and R. v. Cresswell, 2009 ONCA 95, para. 9.
[53] The defendant’s allegation the charged event was an accident and therefore animus may permit introduction of evidence of dissimilar conduct: Handy, paras. 80 and 81.
[54] A judge on an application to admit may consider the credibility of the similar fact evidence where its admissibility is dependent upon probative value: Handy, para. 134.
[55] The court’s analysis and consideration whether to admit should halt if the similar fact evidence is not capable of supporting the inferences sought by the Crown: Handy para 136.
[56] If the accused while opposing admission of the similar fact evidence does not deny that it occurred, the absence of denial enhances the probative value of the similar fact evidence: J.W. para. 50.
Similarities and Dissimilarities in This Case
[57] The use of a hot frying pan, a pellet gun and a paddle are distinct instruments in the application of force against another. Unlike a belt which the complainant alleges, they were not alleged to have been used against the complainant and to that extent are dissimilar.
[58] A hand, foot, belt, paddle, frying pan and pellet gun however are only “instruments” allegedly used by the defendant in his application of force to strike his then young children. While a pellet gun and hot frying pan are obviously the more potentially harmful of these instruments, each remains an “instrument” allegedly used to strike a young child. The distinction as to what instrument was on hand and allegedly used, rather than a hand or foot within that context becomes less important.
[59] The connecting and commonality between the alleged similar facts and the conduct charged in counts 4 and 5 include:
(a) the defendant frequently striking his young children who lived at home with he and his wife;
(b) proximity in time of the abuse alleged of these children;
(c) the defendant’s parental position of authority and his resulting capacity to direct, discipline, punish and assault his children when they were young;
(d) there is some distinctiveness as hitting one’s young child with one’s hand and/or a belt is presumptively not common;
(e) the complainant and KG each not communicating the defendant’s repeated assault of them as children to authorities until the complainant, in response to the defendant’s question as to why she disliked him, wrote out her reasons and KG then took the complainant’s written response to the police and then or subsequently reported the abuse to himself;
(f) assaulting another without use of an instrument external to the human body can only occur in a limited number of ways including the alleged use of the defendant’s hands and feet; and
(g) the alleged striking of these children when they were young allegedly was a common occurrence and amounted to their father’s habit, pattern or “methodology” in dealing with his young children. If true, there is a commonality created by the defendant’s repeated abusive pattern of dealing with his children by way of assaulting them.
[60] The similar fact evidence extends beyond the defendant having a general discreditable disposition. It extends to a pattern of repeatedly striking his young children, whether as discipline or otherwise.
Number of Occurrences of Similar Acts
[61] An alleged pattern of similar fact conduct may gain in strength with the frequency of its occurrence: Handy, para. 128.
[62] The admissibility of similar fact evidence is not a number exercise as:
(a) the question is not the number of similarities or the number of witnesses presented by the Crown. The question is whether the defendant’s conduct towards the similar fact witness was indicative of a situation specific pattern of behaviour such that it was more likely that he had engaged in the same or similar conduct with the complainant; and
(b) consideration cannot be limited to the number of similarities versus the number of dissimilarities. Consideration must include a contextual consideration of their qualitative nature, value, force and the issue to which the evidence is directed: J.W., paras. 49 - 54.
[63] The complainant and KG each allege the defendant frequently assaulted them and the other siblings. The alleged frequency thereof against younger children in the same family by the same parent lends weight towards the credibility of the complainant’s testimony that the defendant frequently struck her.
[64] Frequency is a reason to include and not exclude this similar fact evidence.
Reason for Striking
[65] KG on cross-examination testified the defendant struck him and his siblings as part of disciplining them.
[66] The complainant as alleged was not cross-examined at the preliminary inquiry as counts 4 and 5 which were only subsequently laid. She testified at the preliminary inquiry that the defendant frequently struck all the children in anger but was not asked directly whether the defendant did that as a form of discipline or otherwise.
[67] The best evidence as to why someone struck another is from the person who hit, as opposed to the understanding of the person struck as to why the other person struck them. The difference in understanding, if any, between KG and the complainant as to the defendant’s reason for striking them may simply be subjective interpretation of another person’s motive. Assaulting a young child for disciplinary reasons remains an assault.
[68] This interpretive evidence as to another’s motives does not establish a clear dissimilarity in support of preventing introduction of this similar fact evidence.
Time Proximity of Similar Acts
[69] The possibility of maturing and character reform increases over time and may undermine the premise of continuity of character. Time remoteness may affect relevance and reliability: Handy, para. 122.
[70] The alleged abuse of these siblings occurred when they were younger. There is no evidence of material time gaps between the charged and similar fact events.
[71] The fact that the similar fact witness alleged she was sexually abused 20 years prior to her proposed trial testimony was insufficient reason to conclude that the accused’s right to make full answer and defence was accordingly impaired and her evidence should not therefore be admitted, particularly as the defendant had fully cross-examined that witness thereon at the voir dire: J.W., para. 56-59.
[72] The defence does not submit that the passage of time as to the similar fact evidence impairs his ability to defend charges 4 and 5.
[73] There is insufficient reason to exclude the similar fact evidence on the basis that it is not proximate in time to the alleged events in counts 4 and 5.
Collusion
[74] Collusion between the complainant of the charged offence and the other person alleging the similar facts evidence prevents introduction of the latter evidence as it destroys the argument that they are too similar to be credibly explained by coincidence: Handy, para. 104.
[75] The issue as to collusion is concoction or collaboration, not contact with or the opportunity to concoct or collaborate: Handy, para. 111 and J.W., paras. 36 and 37.
[76] The defence is not objecting to the introduction of the similar fact evidence on the basis of collusion. The only evidence as to this subject is that the complainant wrote out how the defendant had abused her as a child and requested KG to deliver her written statement to their parents. KG in response to this request delivered that written statement to police which resulted in these. KG then reported the defendant assaulting him.
[77] There is no evidence of other communication, discussion or collusion as to these charges between the complainant and KG.
[78] The complainant was cross-examined at the preliminary inquiry as to charges 1 to 3. KG was also cross-examined at length principally about the defendant’s physical abuse of himself and the complainant.
[79] The similar fact evidence should not be excluded on the basis of collusion.
Prejudice
[80] Assessment of the potential prejudice of the similar fact evidence involves consideration of:
(a) the potential risk of convicting an accused because he is a bad person rather than proof that he committed the offence; and
(b) the potential for reasoning prejudice, namely:
(i) the risk of distracting or confusing the jury;
(ii) undue consumption of time; and
(iii) the danger that the jury may have difficulty distinguishing between the subject of the charges versus the similar fact evidence: Handy, paras. 101 and 139 – 147.
[81] Factors relevant to assessing moral and reasoning prejudice include:
(a) the inflammatory nature of the similar facts;
(b) whether the Crown can prove its point with less prejudicial evidence;
(c) the potential distraction away from the facts charged; and
(d) the potential for undue consumption of time: Handy, para. 83.
[82] The similar fact evidence other than the alleged frying pan, paddle and shooting events is not more inflammatory. The Crown can prove its point if the other similar fact evidence is permitted.
Reasoning Prejudice
[83] Distraction of the trier from the offence charged in dealing with multiple allegations or incidents by another in different circumstances resulting in the consumption of additional time are important considerations.
[84] Various forms of distraction can result from introduction of similar fact evidence including sentiments of revulsion and condemnation which may deflect a jury from the rational dispassionate analysis required of the charges.
[85] The practical realities of the trial process reinforce the prejudice inherent if propensity evidence is introduced, namely:
(a) where the similar fact misconduct is denied, the conflict in seeking to admit evidence allegedly relevant to a material trial issue versus the need to avoid unfairness to the right of the accused to respond;
(b) the accused’s right to respond is limited and does not permit introduction of similar fact evidence by the accused in support of his or her credibility to counter discreditable similar fact evidenced introduced by the Crown; and
(c) logistical problems may be compounded by the lapse of time, surprise and the collateral issue rule which, in the interest of effective use of court services, will prevent trials within trials on the similar facts: Handy, paras. 144-147.
[86] Reasoning prejudice includes the danger that the jury may:
(a) be confused by the multiplicity of incidents;
(b) and/or put more weight than is logically justified on the similar fact evidence; and
(c) raise concerns regarding the undue consumption of time involved in receiving evidence of allegations unrelated to the charges: T.B., para. 26.
[87] The risk of reasoning prejudice is considerably reduced and generally minimal in judge alone trials: J.W., para. 57, R. v. Roks, 2011 ONCA 526, para. 94 and R. v. T.B., 2009 ONCA 177, para. 27.
Moral Prejudice
[88] Moral prejudice concerns the risk the evidence might lead to a conviction on nothing more than “bad personhood”: T.B., para. 26.
[89] Moral prejudice is the risk of an unfocussed trial and a wrongful conviction involving the forbidden chain of reasoning which infers guilt from general disposition or propensity, namely that if believed, the evidence shows the accused has discreditable tendencies. The risk is a verdict based on prejudice rather than proof: Handy, para. 139.
[90] The risk associated with similar fact evidence of an inflammatory or more serious nature than the misconduct charged is that the jury will likely be more appalled by the similar fact conduct than the charged conduct: Handy, para. 140.
[91] Prejudice could be restrained by limiting the extent and nature of the similar fact witness’s evidence to be led: Handy, para. 142 and R. v. Corbett, [1988] 1 S.C.R. 670.
Reduced Prejudice in Judge Alone Trial
[92] The risk of a moral or reasoned prejudice is greatly reduced however in a judge alone trial as in this case, as stated by Borins, J.A. in R. v. T.B., 2009 ONCA 177, and relied upon in J.W., para. 57:
[27] … As trial judges are presumed to know the law and the proper and improper uses of evidence, it seems counterintuitive that similar fact evidence could be excluded in a nonjury trial based on the trial judge’s determination that the evidence infuse him or induce him to put more weight on it than is logically justified.
[28] In his lecture entitled “Similar Fact Evidence” in Special Lectures 2003: The Law of Evidence (Toronto: Irwin Law, 2004), Rosenberg J.A. wrote, at p. 414:
The similar fact rule is very much driven by the jury system and the danger that laypersons will give undue weight to frail but highly prejudicial evidence. A similar view was expressed by this Court in R. v. W.(L.), 2004 ONCA 33349, [2004] O.J. No. 4163, (C.A.) at para 9:
It is important to keep in mind that the risk of prejudice was much reduced because of the fact that this was a trial by Judge alone …
[33] … This was a nonjury trial, in which the danger that an accused would be convicted solely on the basis of his general bad behaviour was not a significant concern. Moral prejudice is not a significant risk in a judge-alone trial.
[93] Reasoning prejudice and moral prejudice raise legitimate concerns in a jury trial, but less so in a judge alone trial: T.B., para. 26.
[94] The reduced risk of reasoning and moral prejudice in this judge alone trial does not justify exclusion of the similar fact evidence.
Conclusion
[95] The similar fact evidence sought to be introduced:
(a) relates to the important trial issues identified;
(b) is not just propensity evidence of bad character or propensity reasoning based solely on the defendant’s bad character established thereby;
(c) involves permissibly propensity reasoning that given the defendant’s alleged use of physical force against his children when they were young in similar circumstances;
(d) is probative evidence which exceeds prejudice in this judge alone trial which defies coincidence or innocent explanation;
(e) is indicative of a situation-specific pattern of behavior making it more likely that the defendant engaged in the same conduct with the complainant; and
(f) involves inferences which accord with common sense, intuitive notions of probability and the unlikeliness of coincidence and therefore is admissible subject to the following.
[96] The court may and in this case will limit the similar fact evidence to:
(a) exclude testimony as to use of the more serious conduct in the alleged use of a pellet gun, a frying pan and a paddle;
(b) limit testimony as to the defendant’s alleged use of his hand, feet and belts; and
(c) exclude the alleged striking of any sibling of the complainant who is not called as a witness; in order to maintain the defendant’s right of cross-examination of the alleged victim and not thereby be limited to the cross-examination of the complainant and KG as observers of the alleged assault of the other siblings.
[97] The above admission with restrictions of the proposed similar fact evidence permits introduction of evidence relevant to trial issues with restrictions to safeguard the defendant’s rights to a fair trial.
Mr. Justice Paul Kane