Her Majesty the Queen v. T.R.H. [Indexed as: R. v. H. (T.R.)]

59 O.R. (3d) 161

[2002] O.J. No. 1436

Docket No. C26684

Court of Appeal for Ontario

Weiler, Charron and Sharpe JJ.A.

April 19, 2002

Criminal law -- Evidence -- Similar fact evidence -- Accused charged with 24 counts of sexual misconduct involving nine children -- Charges related to three separate periods of time -- First two periods involved complainants who were blood relatives of accused while third period did not -- Counts in respect of third period involved single incidents rather than repeated abuse -- Identity not in issue -- Accused denied that incidents had occurred and claimed that complainants were not telling truth -- At trial accused seeking severance of counts so offences regarding each complainant tried separately -- Severance application properly denied -- Offences showing pattern of brazen and opportunistic sexual offences on family members and then against unrelated children residing in close proximity once accused's own relations older -- Many of acts involved very distinctive forms of sexual gratification -- Trial judge ruled that evidence on each count was admissible as similar fact evidence on all other counts -- Trial judge properly instructing jury not to use similar fact evidence to convict using prohibited propensity reasoning that accused kind of person likely to commit such offences -- Accused convicted -- Accused argued on appeal that evidence relating to first two periods should not have been admitted with respect to counts falling within third period of time -- Appeal dismissed -- Similar fact evidence may have requisite probative value even where it does not rise to level of striking similarity -- Trial judge entitled to find that evidence of each complainant had significant probative value with respect to reliability and credibility of other complainants - Appeal dismissed.

The accused was charged with twenty-four counts of sexual misconduct involving nine children between the ages of four and 12. The charges could be broken down into three periods: 1964 to 1967, 1970 to 1980, and 1989 to 1994. For the first period, there was one complainant, the accused's niece. For the second period, there were five complainants, all related to the accused. For the period between 1989 and 1994, there were three complainants, none of whom was related to the accused. The accused sought severance of the charges into nine separate indictments, one for each complainant. The trial judge found that the accused had failed to satisfy him that the ends or interests of justice required severance. The Crown sought a ruling that the evidence in respect of each count be treated as similar fact evidence in relation to all other counts. The trial judge noted that all of the charges involved sexual offences against children under the age of twelve, that identity was not in issue, and that the accused's defence was that the incidents had not occurred and that the complainants were not telling the truth or were honestly mistaken. He ruled that the evidence on each count was admissible with respect to all other counts. He held that the evidence was admissible to support, either directly or circumstantially, some part of each complainant's testimony and that it could be tendered to show a general plan of behaviour by the accused, when opportunity arose, to sexually attack pre-teen children for his own gratification. He noted that the evidence was capable of setting out a narrative of the relationship between the complainants and the accused, which was distinctive; of describing the type of victim that the accused sought out as a pattern, which again was distinctive; of describing the type of repetitive sexual acts that gratified him, which was distinctive to a degree, and describing the common brazen opportunistic assaults, which were, again, distinctive. He also noted that the evidence tended to explain omissions of memory which otherwise might suggest lack of credibility or reliability, and so lent credibility to each complainant; that the evidence contradicted the argument of honest mistake or innocent association, which was a live issue; and that the evidence was relevant to the essential elements of the offences and to a real, viable defence applicable to each offence. The accused was convicted. He appealed, arguing that the trial judge erred in admitting the similar fact evidence. He conceded that the evidence relating to each of the counts between 1970 and 1980 was properly admitted with respect to the other counts within that period, but submitted that the pre-1989 evidence should not have been admitted with respect to the counts between 1989 and 1994.

Held, the appeal should be dismissed.

A high degree of deference is to be accorded to the decision of a trial judge on the issue of the admissibility of similar fact evidence.

A categorical approach to the admission of similar fact evidence is inappropriate. The probative value and prejudicial effect of the evidence must be assessed with reference to the specific issues of the case. Even where similar fact evidence does not rise to the level of striking similarity, it may still have the requisite probative value, particularly where identity is not at issue. The trial judge recognized that to be admissible, similar fact evidence must do more than show a general disposition to commit the crime. He identified the reliability and credibility of each complainant as the central issue to be addressed by the jury. While the evidence did reveal some similarities, it could hardly be said that it showed a signature or striking similarity. On the other hand, it was open to the trial judge to conclude that the evidence revealed a pattern and general plan of behaviour on the part of the accused sufficient to accord the evidence greater probative value than mere propensity evidence. He was entitled to find that the evidence of each complainant had significant probative value with respect to the reliability and credibility of the other complainant, as it provided corroboration of their accounts.

Although the accused is correct that the similarity between the post-1989 period assaults is not as strong as between the pre-1989 assaults, that does not demonstrate that the trial judge erred in permitting the pre-1989 offences to be used as similar fact evidence. It is possible that the trial judge's ruling might have been different had the accused been tried solely on the post-1989 offences but the ruling must be reviewed in light of the circumstances of the trial, including the position of the accused at trial. The accused's tactical approach at trial to deal with the similarity of the offences alleged was to seek severance of counts so that the charges pertaining to each complainant would be tried separately. Once that application was denied, he faced a multi-count indictment. The jury was given a proper instruction against engaging in propensity reasoning. On appeal, the accused argued that after the severance application was denied, the trial judge should have considered the proposed similar fact ev idence by grouping the evidence into decades, a position not advanced at trial. When deciding whether to interfere with a trial judge's discretionary ruling, an appellate court should hesitate to accept an argument regarding the admissibility of evidence not made at trial for tactical reasons. The accused has not shown any error of law to justify appellate interference with the trial judge's ruling admitting the similar fact evidence.

APPEAL from a conviction for sexual offences.

Cases referred to R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, 58 B.C.L.R. (3d) 18, 166 D.L.R. (4th) 296, 232 N.R. 317, [1999] 5 W.W.R. 545, 129 C.C.C. (3d) 321, 20 C.R. (5th) 1; R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, 73 Alta. L.R. (2d) 1, 107 N.R. 241, [1990] 3 W.W.R. 385, 55 C.C.C. (3d) 1, 76 C.R. (3d) 1; R. v. B. (L.), R. v. G. (M.A.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35, 116 C.C.C. (3d) 481, 9 C.R. (5th) 38 (C.A.); R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321, 145 C.C.C. (3d) 449, 34 C.R. (5th) 197 (C.A.); R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, 44 D.L.R. (3d) 351; R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333, 14 Alta. L.R. (3d) 1, 86 C.C.C. (3d) 97, 25 C.R. (4th) 137; R. v. P., [1991] 3 All E.R. 337 (H.L.)

Dirk Derstine, for appellant. Feroza Bhabha, for respondent.

The judgment of the court was delivered by

[1] SHARPE J.A.: -- The appellant was tried by judge and jury on 24 counts of sexual misconduct involving nine children. The charges span a period of 30 years between 1964 and 1994. At the time of the alleged offences, the complainants were between four and 12 years of age. The complainants include the appellant's son, daughter, step-daughter, nephew, two nieces, two neighbours and one acquaintance. The charges include six counts of gross indecency, six counts of indecent assault, three counts of sexual assault, three counts of touching a person under 14 years of age for a sexual purpose, two counts of buggery, two counts of sexual intercourse without consent with a person under 14 years of age, one count of incest and one count of invitation of a person under 14 years of age to sexual touching.

[2] The appellant was found guilty on all counts. However, the application of the principle in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, 44 D.L.R. (3d) 351 reduced the number of counts on which convictions were entered from 24 to 15.

[3] The Crown applied to have the appellant designated a dangerous offender. Evidence was led that the appellant is a polymorphous bisexual pedophile with an anti-social personality disorder and that the appellant posed a significant risk of committing further sexual offences against children. The trial judge declared the appellant to be a dangerous offender and sentenced him to an indeterminate period of incarceration.

[4] The appellant appeals his convictions and his designation as a dangerous offender. The appellant's notice of appeal and factum advanced several grounds of appeal. However, in oral argument, counsel for the appellant advanced only one ground of appeal: that the trial judge erred in ruling that the evidence on each count was admissible on all other counts as similar fact evidence. Counsel conceded that none of the other alleged errors were sufficient to warrant a new trial. Counsel also abandoned the grounds of appeal relating to the dangerous offender designation. However, he submitted that if certain of the convictions were set aside on the issue of similar fact evidence, the dangerous offender designation would be vulnerable to review.

Facts

[5] The charges against the appellant may be broken down into three periods: 1964 to 1967, 1970 to 1980, and 1989 to 1994. For the period between 1964 and 1967, there is one complainant, the appellant's niece D.B., and two counts, indecent assault and gross indecency.

[6] For the period between 1970 and 1980, there are 15 counts involving five complainants: the appellant's daughter, W.H.; the appellant's son, T.H.; the appellant's stepdaughter, S.A.; the appellant's nephew, B.G.; and the appellant's niece, S.H. The most serious charges relate to the appellant's stepdaughter, S.A., who testified that the appellant sexually abused her on an almost daily basis for a period of three years. Her complaints included manual and oral sex, anal and vaginal intercourse, mutilation of the vagina with a knife and acts involving sexual gratification from the complainant's urination.

[7] For the period between 1989 and 1994, there are three complainants, none of whom is related to the appellant. C.L. lived in an apartment building neighbouring the appellant's residence. T.W. is the grandson of a woman with whom the appellant stayed for a month. J.A. lived in an apartment in the same building as the appellant. There were three incidents giving rise to seven counts: three counts of sexual assault, three counts of touching a person under 14 years of age for a sexual purpose, and one count of invitation of a person under 14 years of age to sexual touching.

[8] The argument advanced before us focused on the convictions arising from the third period between 1989 and 1994. The appellant conceded that evidence relating to each of the counts between 1970 and 1980 was properly admitted with respect to the other counts within that period. However, the appellant submits that the pre-1989 evidence should not have been admitted with respect to the counts between 1989 and 1994.

[9] The evidence relevant to the issue of similar fact evidence is conveniently summarized in a chart that was attached to the respondent's factum, which both counsel used in their submissions. The chart contains a concise yet detailed summary of the evidence. For ease of reference, I attach it to these reasons.

[10] Since the argument before us focused on the post-1989 complainants, I will briefly review the evidence concerning those allegations. I will then review the trial judge's rulings on severance and similar fact evidence and his instruction to the jury on similar fact evidence.

(a) C.L.

[11] When C.L. was 12 years old, he lived in an apartment building neighbouring that of the appellant. C.L. testified that he went into the appellant's apartment five or six times. On one occasion, when other people were there, the appellant gave him alcohol. C.L. fell asleep and awoke to find that he was alone with the appellant, who was wearing only his underwear. The appellant asked C.L. to remove his sock and proceeded to masturbate using C.L.'s foot. C.L. went to the bathroom to wash after the appellant ejaculated. The appellant returned, began kissing and licking C.L.'s neck, and asked C.L. to join him in his bedroom. C.L. refused this request and left the apartment.

(b) T.W.

[12] T.W. testified that when he was ten years old he went to stay overnight at his grandmother's place. That evening, his grandmother had people over drinking. The appellant was present. T.W.'s grandmother testified that the appellant had been living in her apartment, sleeping on the pull-out couch in the living room for one month before her grandson's visit. T.W. fell asleep on the living room floor in front of the television. He felt someone lift and carry him onto the pull- out couch. He recalled the appellant putting his hands down his underwear. During the night, the appellant performed fellatio on him twice and twice placed T.W.'s hand on his penis. T.W. later awoke to find the appellant touching him. When he put on his clothes to leave, the appellant pulled at his leg. T.W. left and went next door to his aunt's house.

(c) J.A.

[13] J.A. was ten years old at the time of the appellant's trial in 1996. She testified that during the spring break of 1994, she and two children from the apartment above hers went to visit the appellant in his basement apartment in the same house. They had all gone downstairs to watch television and play. J.A. testified that one day she fell asleep in the appellant's apartment while watching a movie and awoke to the appellant rubbing her vagina. The two other children were no longer there. The appellant continued rubbing her vagina for a couple of minutes before she finally left and went upstairs. J.A. testified that, before she left the appellant's apartment, he told her not to tell her mother or something worse would happen. She reported the incident to her mother the next day.

(d) Rulings on severance and similar fact evidence

[14] The Crown sought a pre-trial ruling that the evidence in respect of each count be treated as similar fact evidence in relation to all other counts. The appellant resisted that ruling and asked for severance of the charges into nine separate indictments, one for each complainant.

[15] The trial judge first considered the issue of similar fact evidence. He held that the Crown's application was premature. The trial judge reserved his ruling until after he had determined "what are the real issues, which can only occur after the complainants have completed their testimony".

[16] The trial judge then dealt with the appellant's request for severance. Referring to the test set out in R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333, 86 C.C.C. (3d) 97, the trial judge found that the appellant had failed to satisfy him that the ends or interests of justice required severance.

[17] Toward the end of the Crown's case, the trial judge gave his ruling on similar fact evidence. He noted that all of the charges involved sexual offences against children under the age of 12, that identity was not in issue, and that the accused's defence was that the incidents had not occurred and that the complainants were not telling the truth or were honestly mistaken. The trial judge reviewed the authorities and ruled that the evidence on each count was admissible with respect to all other counts for the following reasons:

If the defence in this trial is that the events never occurred, then the issue to be addressed is the reliability and credibility of each complainant.

In my view, the evidence in question is admissible to support, either directly or circumstantially, some part of each complainant's testimony. The question on this point is: Does the similar fact evidence lend credibility to that complainant's testimony?

As well, similar fact evidence may be tendered to show a general plan of behaviour by the accused, when opportunity arises, to sexually attack pre-teen children for his own gratification, and this category includes his own blood relatives. It is admissible, as well, for reasons which I will set down in a moment.

Given these parameters and principles which I have just quoted, I am of the opinion that the similar fact rule should apply, count to count, for the following additional reasons:

1. All of the evidence heard is directly admissible to two or more counts;

2. There is no similar fact evidence which is not directly admissible to a particular count;

3. The evidence is capable of setting out a narrative of the relationship between the complainants and the accused, which is distinctive; of describing the type of victim that the accused sought out as a pattern, which again is distinctive; of describing the type of repetitive sexual acts that gratified him, which is distinctive to a degree, and describing the common brazen opportunistic assaults, which are, again, distinctive; the evidence tends to explain omissions of memory which otherwise might suggest lack of credibility or reliability, and so lend credibility to each complainant; the evidence contradicts the argument of honest mistake or innocent association, which is a very live issue; and, finally, the evidence is relevant to the essential elements of the offences and to a real, viable defence applicable to each offence.

Accordingly, it is my view that the similar fact evidence ought to be made admissible, and the jury will be so instructed.

(e) Jury instruction on similar fact evidence

[18] The trial judge's ruling on the issue of similar fact evidence should be considered in light of his instruction to the jury on the use that could be made of the evidence. No exception was taken to this instruction at trial nor is the instruction impugned on appeal. The trial judge's instruction included the following remarks regarding similar fact evidence:

Now, let me turn to the subject called similar fact evidence. It is a somewhat difficult one. What is it? It is evidence of other acts by this accused man, which you consider so similar to the conduct charged in a particular count that you are now considering, that you are able to infer from the existence of that other act or acts, that some testimony, directly relevant to that count, is more likely to be true.

You are permitted, in this case, to apply the evidence relating directly to each count, as circumstantial evidence or indirect evidence relating to every other count. You may do that, but you are not obliged to do that. Thus, in considering, for example -- and this is only an example -- count ten [indecent assault of S.A.], you may look at the direct evidence of counts one to nine and eleven to twenty- four as circumstantial evidence from which you may draw inferences or logical conclusions tending to prove one or more of the essential elements required to be proven in count ten, or tending to contradict a defence raised by the accused.

I emphasize as strongly as I can that you may not use this indirect or circumstantial evidence as some sort of proof that the accused is a person of such bad character that you conclude he must be guilty of this or some of the other offences. You may only use such evidence when you are dealing with whether some factual element in count ten, carrying on my example, described by the complainant in that count, tends to be more likely to be true than not. If so, the circumstantial evidence tends to corroborate the complainant, thus giving you more confidence that the complainant is credible and reliable.

As well, you may use that evidence in weighing the defence evidence which directly bears on that count. Such evidence may tend to support or contradict the direct defence evidence. The Crown must ultimately satisfy you beyond a reasonable doubt, after you consider both the direct and the circumstantial evidence, as well as the defence.

It is in proof of some particular fact or group of facts that you will examine the similar fact material. Similar fact evidence by itself cannot constitute proof beyond a reasonable doubt of any count on this indictment. It must be a reinforcement of some factual issue testified to by a complainant in a particular count.

The issues which you will encounter in every count, in my view, are firstly whether the relationship between the particular complainant and the accused was an innocent one. In that sense, the association or the connection between the accused and each complainant is admitted. The accused's position is that it was an innocent one. The complainant's position is that it was not an innocent one. That is true of every count. Similar fact evidence bears on that.

Secondly, you must consider whether the acts alleged by the complainant are sufficiently similar to others that you find are likely to have happened, that you conclude that the complainant is more credible and reliable: that is, that the similar fact evidence corroborates the complainant to some degree.

Thirdly, you must consider whether you perceive a pattern or methodology, repeating itself from situation to situation, that leads you to have confidence in the accuracy and truthfulness of a particular complainant. You must consider whether the circumstantial evidence is ambivalent and lends no meaningful support to the complainant's allegations, in which case you must decide your verdict upon the evidence directly relating to that count, and nothing else.

As well, the accumulation of evidence from all of the witnesses may be used to paint a picture of the family background, in which context the allegations are made. This picture will lend flesh and substance to the direct evidence bearing specifically on a count. Thus, the supporting witnesses, while called in relation to a particular complainant, give evidence which assists in understanding the narrative over this lengthy period of time, and the interrelationship of all of the actors.

(Emphasis added)

Analysis

[19] The appellant submits that the trial judge erred in ruling that the evidence relating to the pre-1989 counts was admissible with respect to the post-1989 counts. He argues that there are significant differences between the allegations relating to these two periods, since the pre-1989 counts involved frequent sexual acts with family members and the post- 1989 counts arose from single incidents with non-family members. He submits that, while there is some similarity between some of the specific acts alleged, there is really no distinctive pattern of behaviour beyond the fact that all of the allegations involve acts of pedophilia. He submits that there were significant differences regarding the use of threats and violence and places particular emphasis on the prejudicial effect of the evidence relating to his stepdaughter, S.A. The allegations involving S.A. were extremely serious and alarming, and the appellant submits that this evidence had an overwhelmingly prejudicial effect that clearly outweighed any probative value it might have had with respect to the post-1989 complaints.

[20] To succeed on this ground, the appellant must show that the trial judge's treatment of the similar fact evidence demonstrates an error of law. A high degree of deference is to be accorded to the decision of a trial judge on the issue of the admissibility of similar fact evidence. See R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, 129 C.C.C. (3d) 321, at p. 363 S.C.R., p. 340 C.C.C.; R. v. B. (L.); R. v. G. (M.A.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35, 116 C.C.C. (3d) 481 (C.A.), at pp. 59-60 O.R., pp. 505-06 C.C.C. In R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, 55 C.C.C. (3d) 1, at p. 733 S.C.R., pp. 23-24 C.C.C., McLachlin J. stated:

A . . . feature of this court's treatment of the similar fact rule since Boardman [[1975] A.C. 421 (H.L.)] is the tendency to accord a high degree of respect to the decision of the trial judge, who is charged with the delicate process of balancing the probative value of the evidence against its prejudicial effect. . . . This deference to the trial judge may in part be seen as a function of the broader, more discretionary nature of the modern rule at the stage where the probative value of the evidence must be weighed against its prejudicial effect. As a consequence of the rejection of the category approach, the admissibility of similar fact evidence since Boardman is a matter which effectively involves a certain amount of discretion. . . . Generally, where the law accords a large degree of discretion to a trial judge, courts of appeal are reluctant to interfere with the exercise of that discretion in the absence of demonstrated error of law or jurisdiction.

[21] I am not persuaded that the trial judge's reasons reveal any demonstrated error of law or jurisdiction that would justify this court's intervention. In my view, the manner in which the trial judge approached the issue of similar fact evidence was consistent with the principles laid down by the Supreme Court of Canada. His assessment of the probative value of the evidence, weighed against its prejudicial effect, fell within accepted limits.

[22] In B. (C.R.), the Supreme Court of Canada rejected a categorical approach to the admission of similar fact evidence and emphasized the importance of assessing the probative value and prejudicial effect of the evidence with reference to the specific issues of the case. At p. 738 S.C.R., p. 27 C.C.C., McLachlin J. stated that "the probative value of similar fact evidence must be assessed in the context of the other evidence in the case."

[23] The trial judge followed this approach. The appellant had denied the allegations and invited the jury to find that the complainants were lying or mistaken. The appellant was well known to all complainants and identity was not at issue. Rather, as the trial judge noted in his ruling, the appellant's position was that the incidents giving rise to the charges simply had not occurred.

[24] In Arp at p. 366 S.C.R., pp. 341-42 C.C.C., Cory J. held that even where similar fact evidence does not rise to the level of "striking similarity", it may still have the requisite probative value, particularly where identity is not at issue. Cory J. cited with approval R. v. P., [1991] 3 All E.R. 337 (H.L.) at p. 348:

Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or some other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.

[25] In Arp, at p. 367 S.C.R., p. 344 C.C.C., Cory J. formulated the test for admissibility in the following terms:

. . . [W]here similar fact evidence is adduced to prove a fact in issue, in order to be admissible, the trial judge should evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established. Only then will the evidence have sufficient probative value to be admitted.

[26] Arp was decided after the trial and the trial judge did not couch his ruling in these precise terms. However, his approach to the issue of similar fact evidence is consistent with the holding in Arp.

[27] The trial judge recognized that to be admissible, similar fact evidence must do more than show a general disposition to commit the crime. He identified the reliability and credibility of each complainant as the central issue to be addressed by the jury. While the evidence did reveal some similarities, it could hardly be said that it showed a signature or "striking similarity". On the other hand, it was open to the trial judge to conclude that the evidence revealed a pattern and general plan of behaviour on the part of the appellant sufficient to accord the evidence greater probative value than mere propensity evidence. In my view, he was entitled to find that the evidence of each complainant had significant probative value with respect to the reliability and credibility of the other complainants.

[28] The similar fact evidence revealed a pattern of sexual predation on children. Most of the allegations concerned children with a close family tie to the appellant. While the same cannot be said of the post-1989 assaults, by that time, the children in the appellant's family had matured. Although the post-1989 complainants were not family members, they were children who were known to the appellant or who lived in close proximity to him. Two of the post-1989 complaints involved children sleeping in the appellant's quarters and the third involved a child sleeping at his grandmother's home.

[29] The circumstances of the post-1989 complaints are closely akin to the familial pattern established by the earlier complaints. As the trial judge noted in his ruling, the type of sexual acts that gratified the appellant were distinctive to a degree. This conclusion certainly applies to the use of the victim's foot for the purposes of sexual gratification, which was part of C.L.'s complaint. It also applies, albeit to a lesser extent, with respect to the acts of fondling alleged by T.W. and J.A. Further, many of the acts were committed with others in close proximity and this conclusion applies equally to the post-1989 acts, particularly the assault on T.W. It is difficult to quarrel with the trial judge's characterization of the assaults as a whole as "brazen" and "opportunistic".

[30] The trial judge ruled that the similar fact evidence had probative force in providing corroboration of the complainants' accounts, which the appellant had disputed as manufactured or mistaken. It was open to the trial judge to so find. As McLachlin J. held in B. (C.R.), at pp. 738-39 S.C.R., pp. 27-28 C.C.C.:

It is well established that similar fact evidence may be useful in providing corroboration in cases where identity or mens rea is not in issue.

As noted earlier, the probative value of similar fact evidence must be assessed in the context of other evidence in the case. In cases such as the present, which pit the word of the child alleged to have been sexually assaulted against the word of the accused, similar fact evidence may be useful on the central issue of credibility.

[31] No doubt the similar fact evidence did show that the appellant had a propensity to commit pedophilic assaults. But similar fact evidence is not to be excluded on that ground alone. Evidence tending to show a propensity to commit the offence charged may be admitted if, in the trial judge's view, its probative value in relation to the issues in the case is sufficient to outweigh the inherent prejudice likely to flow from its reception. As Charron J.A. explained in B. (L.), supra, at p. 57 O.R., pp. 503-04 C.C.C., quoted with approval in R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321 at p. 349, 145 C.C.C. (3d) 449 (C.A.) at p. 349 O.R., p. 482 C.C.C.:

. . . [P]ropensity reasoning in and of itself is not prohibited. Indeed, it is usually inevitable, given the nature of the evidence and the reason for its admission. . . .

It is propensity reasoning that is based solely on the general bad character of the accused, as revealed through this evidence of discreditable conduct, which is prohibited.

[32] I agree with the appellant's submission that the similarity between the post-1989 assaults is not as strong as the similarity between the pre-1989 assaults. If one isolates the post-1989 complaints, the case for admitting evidence of the pre-1989 misconduct is less strong. However, the trial judge's ruling should be assessed in light of the circumstances that existed at trial and in light of the position taken by the appellant.

[33] In this regard, two points deserve attention. First, the similar fact evidence resulted from a multi-count indictment. The appellant's severance motion failed, the jury heard all of the evidence, and the trial judge gave a limiting instruction cautioning the jury not to engage in propensity reasoning. If the appellant had faced trial only on the post-1989 complaints and if the similar fact evidence had not flowed from a multi- count indictment, the trial judge's ruling on the issue of similar fact evidence may well have been different. However, it does not follow that the trial judge erred in ruling as he did in the context of a single trial on a multi-count indictment.

[34] Second, the trial judge was not presented with the same submission as the one that the appellant has advanced on appeal. At trial, the appellant did not ask the trial judge to group the offences in decades for the purposes of the issue of similar fact evidence. Rather, the appellant sought nine separate trials and argued that the evidence with respect to each complainant should be considered separately. Such a ruling would clearly have been of far greater advantage to the appellant than a ruling following the more restrained and nuanced argument that the appellant advanced on appeal. It seems to me that when deciding whether or not to interfere with the trial judge's discretionary decision, it is appropriate to take into account the appellant's tactical trial decision concerning how best to deal with the issue of similar fact evidence. This court should hesitate to accept on appeal an argument relating to the admissibility of evidence that the appellant did not make at trial for tactical reasons.

[35] In my view, the appellant has failed to demonstrate any error of law that could justify this court's interference with the trial judge's ruling on the issue of similar fact evidence.

Conclusion

[36] For these reasons, I would dismiss the appeal against the convictions. It follows that the appeal against the dangerous offender designation should also be dismissed.

Appeal dismissed.

APPENDIX "A" -- Similar Fact Evidence

Complainant D.B. W.H. T.H. Relationship Niece Daughter Son Time Frame 1964-1967 1970-1977 1973-1976 Count No. 23-24 15-17 18 & 22 Age 5-7 4-12 8-10

Location of 4x Bathroom- Grandmother's Acts Complainants stood home (accused bedroom at complainant mother) during accused on toilet access visits mothers home Pullout couch Pullout couch 1x Living- accused's while watching room couch brother TV asleep 2x Grandmother's complainant's Grandmother's bedroom bedroom at (accused's her home mother) house Aunt's house -watching TV -sat on lap S.A.'s home on couch

Frequency 7 times 100 times 18-15 times

Type of Removed PJs Simulated Fondling Activity fondled intercourse complainants vagina slight to penis penetration ejaculation- by fingers removed PJ Simulated bottoms intercourse Placed complainants Attempted Accused hand on his intercourse- masturbating self penis holding some and having her hand penetration complainant around it masturbate him

Type of Accused lying Fondling, Attempt fellatio Activity on couch, kissing - -accused having (cont'd) complainant lips, neck complainant suck straddling cheeks his penis him told her to close her Sat on lap- Masturbation eyes and put rubbing using her hand on against complainant's his penis vaginal area feet -while ejaculation in Touched clothed his hand breasts After Complainant would ejaculation ask him to stop- wipe on he didn't Kleenex or bedclothes

Words used by Don't say I love you, I See previous page accused anything or won't hurt you'll get you Uncle T. in trouble Complainant crying asking If you tell him to stop- your Dad will he wouldn't kill me Don't tell When grand- your mother I mother enters did this, room: I'm not Daddy loves hurting her you When grand- mother told Be quiet- him he'd get put hand over in trouble mouth

Handed her to another man saying "she likes it"

Much later said "Little kids are sexual" - family gathering complainant 20 yrs old

Presence of Others Grandmother Grandmother others nearby present in (accused's in her own home mother's bedroom home) Grandmother walked in two Brother T. times - 1 asleep in bed time said nothing, D.A. asleep other in her room occasion said "T. you're Occasions going to get when S.A. in trouble" slept in bed

Younger sister asleep in bedroom

Approach Enters bed- One time came While room when in argument complainant complainant ensued sleeping going to sleep or While watching asleep - TV acted calm nice

Accused's Confronted later reaction if by complainant confronted then 17 years

Initially denied later admitted abuse

Said he needed help

Factual Nexus Frightened by Brought S.A. Spoke of Charlie with other with stories to bedroom and Herman - complainants of Herman one at accused's Ghosts of two of his direction. ghosts S. didn't Given playboy to want to go read while Responsible accused took for curtains S. crying sister W. into moving noises when alone bathroom in room with him Visited address of S.A. Saw accused saying "I Did trick love you - lighting his hand never hurt on fire you" to S. as she sat on Had pieces of dresser brain/material in jar Confirms - Charlie and D.J. gives Herman ghost relevant evidence buddies re W. and T.

Piece of brain in jar

Visited address of S.A. on Caroline St.

Complainant S.A. B.G. S.H Relationship Step-Daughter Nephew Niece Time Frame 1973-1980 1970-1973 1974-1980 Count No. 8-13 21 & 22 13-14 Age 7-11 9-10 6-7

Location of Basement, Garage - Basement, TV Acts bedroom, Complainants room at bathroom home complainant's home While Storage watching TV Room in basement in complainant's home

Frequency Almost daily 2 times 1 time plus for 3 years numerous occasions tickling and poking up to age 11 or 12

Type of Forced to Accused Placed Activity masturbate unzipped complainant accused pants and on his lap - forced legs straddling Rubbing complainant his body penis against to masturbate complainant him to Undid pants ejaculation took his penis Fellatio w. out and rubbed ejaculation Fondling against her complainant's vaginal area, penis penis erect, pulled her Sat child on leotard open to lap, unzipped expose her body pants, and forced masturbation

Type of Ejaculation See previous Might have Activity in Kleenex- page touched accused's (cont'd) cunnilingus penis

Anal Tickling of intercourse breasts, body- poking vaginal Attempt area intercourse cut vagina with knife

Bit vagina

Urination - accused drinking urine

Photographs of complainant

Accused with PJ bottom removed

Rubbed penis against complainant's feet, breasts, face

Digital penetration

Words used Threats to See previous This is fun, by accused kill her page this is okay Mother if she told We're just playing around; Told her he just a game loved her

Complainant would ask him to stop he wouldn't

Do you like it?

Told her to be quiet

Called her a "good girl"

Presence of Other some- Others Family gathering others nearby times in present in near Christmas, home home someone came in room, he fixed his clothes, she jumped off, others upstairs

Approach Other Closed Asked occasion garage door, complainant to slapped, bit lifted sit on his knee complainant complainant and her onto shelf- mother undid both pants

Whispered in ear, picked child up and carried into room

Accused's Mother of Mom yells Complainants Reaction if complainant downstairs- asked what was Confronted confronted what's going wrong-accused accused but on? - flees indicated they not directly from house were playing about abuse nothing wrong

Told Grandmother recalls hearing yelling between Grandmother and accused

Factual Nexus Piece of Nature of Nature of with other brain in jar activity activity complainants Accused Told her Circumstances attributes act ghosts of the to complain- Charlie and offence ant much like Herman admission with watching her respect to daughter W. Burnt her hands during trick with lighter fluid

Complainant C.L. T.W. J.A. Relationship Acquaintance Acquaintance Tenant Time Frame 1989 1993 1994 Count No. 6-7 3-5 1-2 Age 11 10 8

Location of Accused's Pullout couch Accused's base- Acts apartment at accused's ment apartment living-room mother's on bed watching apartment TV

Frequency 1 1 1

Type of Accused told Fondling Fondling Activity complainant complainant's complainant's to remove his penis, vagina inside sock - he fellatio on her clothes then used complainant with his fingers complainant's foot to masturbate to ejaculation

Type of Accused said See previous See previous page Activity "come on into page (cont'd) bedroom" saw pornographic magazines at accused's apartment

Kissing ears, neck

Words used Complainant Go back to Is this okay? by accused kept telling sleep, Complainant him to stop, complainant replied "no" leave him telling him alone, he to stop If I tell my didn't mommy something listen He didn't even worse would offered happen complainant $5.00

Presence of Accused's In apartment others nearby mother, in upstairs her bedroom

Approach Supplied Complainant Victim fell alcohol, awoke as asleep - awoke as complainant accused accused fondled awakes to molesting him her find accused dressed in his under- wear

Accused's D.L., Police called Police called Reaction if complainant's accused left accused left confronted mother-told house surreptitiously him "C. told did not return me every- Returned to get his thing and I confronted- belongings was going to left and call police" didn't return Accused arrested to Midland shortly after- Accused wards replied - I don't give them booze and cigarettes"

She called him a pig - "If I were a man you wouldn't be standing"

Factual Nexus Nature of Nature of Nature of with other activity activity activity complainants (masturbation by foot) Circumstances Circumstances of the of the offence: Circumstances offence: sleeping victim of the sleeping offence: victim Living as tenant neighbour in complainant's Living as a home Used bribes tenant in complainant's Used bribes home Claims to have Used bribes seen her father touching her improperly much like claim involving S.A. and her uncle