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

68 O.R. (3d) 75

[2003] O.J. No. 4589

Docket No. C34751

Court of Appeal for Ontario

Abella, Simmons and Armstrong JJ.A.

November 28, 2003

Criminal law -- Evidence -- Similar fact evidence (past discreditable conduct) -- Admissibility -- Accused convicted of two sexual offences against eight-year-old -- Trial judge erred by admitting similar fact evidence of two prior sexual assaults on young children nine and ten years ago -- Trial judge framed issue too broadly when relying on various aspects of credibility as purpose for which similar fact evidence adduced -- Trial judge erring in relying on generic similarities in sexual assaults of children and failing to consider impact of dissimilarities or significant moral prejudice arising from generic similarities she identified -- Threshold for admission of similar fact evidence set too low by trial judge -- Prejudicial effect of similar fact evidence outweighing its probative value -- Appeal from conviction allowed and new trial ordered.

The accused was charged with sexual assault and sexual interference. The complainant, who was eight years old at the time of the alleged offences, claimed that she was alone with the accused in his bedroom after going swimming and that he aimed a blow drier at her vagina and blew on and kissed her vagina, and then apologized for his conduct. The Crown was permitted to lead similar fact evidence in the form of the details of the accused's two prior convictions for sexually assaulting children. In one incident, which occurred in 1986, the accused rubbed the vagina of a ten-year-old girl with his thumb on the outside of her clothing while breathing heavily, and then apologized to her. The accused was convicted of that offence after a trial. In the other incident, which occurred in 1987, the accused asked an eight-year-old boy if he wanted to see inside his van, wrestled with the boy inside the van, and touched his penis outside and inside his clothing. He then told the boy not to tell anyone what had happened. The accused pleaded guilty to that offence. The trial judge found that the similar fact evidence was probative of several issues other than the accused's propensity to sexually assault young children, namely: the credibility of the complainant, the credibility of the allegations against the accused; the accused's credibility and character; a pattern of behaviour on the part of the accused; and the rebuttal of the defence of innocent association.

On the issue of the similarities between the past assaults and the alleged assault, the trial judge found that all three complainants were under ten years old at the time of the offence; that the accused was alone with all of the complainants; that the accused lured each of the complainants to a private setting; and that the incidents involved a brief touching of the genitals. The trial judge instructed the jury that they were not to use the similar fact evidence as a basis for assuming that the accused was a bad person who was likely to have committed the offences charged; nor were they to attempt to punish the accused for his past misconduct by finding him guilty of the offences charged. The accused was convicted. He appealed.

Held, the appeal should be allowed. [page76 ]

Per Simmons J.A. (Armstrong J.A. concurring): Five aspects of the trial judge's reasoning led her to set the threshold for admissibility of the discreditable conduct evidence too low: (i) she framed the question too widely, allowing too broad a gateway for the admission of discreditable conduct evidence; (ii) she did not identify the degree of connection to the alleged offence required to make the discreditable conduct evidence admissible; (iii) in assessing the cogency of the discreditable conduct evidence, she relied primarily on generic similarities between it and the evidence of the complainant; (iv) in assessing the cogency of the discreditable conduct evidence, she did not identify the features of the proposed evidence that distinguished it from the evidence of the complainant; and (v) she failed to recognize the significant moral prejudice arising from the generic quality of the similarities she identified. The similarities identified by the trial judge related to non-specific conduct and lacked detail.

The risk in relying primarily on generic similarities to support an inference that the actus reus occurred is twofold. One, the initial inference arising from the prior conduct becomes so general, that it approaches bad personhood. Two, because of their non-specific character, generic similarities may mask underlying dissimilarities that could be important in a particular case. In this case, the initial inference that could be drawn from the identified similarities in the accused's past conduct amounted to little more than that he had engaged in genital touching of children aged ten or under in the past, in circumstances involving privacy, and that following the sexual abuse, he may apologize to the child. This inference contributed only marginally to determining whether the specific incident described by the complainant actually took place. As she failed to identify the features of the proposed similar fact evidence that distinguished it from the complainant's evidence, the trial judge did not consider the impact of the distinguishing features on the probative force of the proposed evidence. The discreditable conduct incidents occurred approximately nine years and ten years prior to the alleged offence and were therefore remote in time from it. Remoteness in time increases the possibility of character reform and may also affect the relevance and reliability of discreditable conduct evidence.

In addition, the small number of incidents and their remoteness from the incident in question diminished their probative value as a pattern of conduct. Apart from the generic similarity that all the incidents involved touching children's genitals, none of the incidents were similar in detail. Moreover, the incident described by the complainant was somewhat distinctive, in that it involved oral contact and the use of an item external to the accused's body. The identified similarities failed to establish a persuasive degree of connection. The trial judge failed to recognize that relying primarily on generic similarities to justify admission of the discreditable conduct evidence magnified the risk that the jury would misuse it. The reason for that was twofold. First, the inference arising from the prior conduct came closer to bad personhood, increasing the risk that the jury would reason that because the accused had sexually touched children in the past, he must have done so on this occasion. Second, particularly because the trial judge did not identify the distinguishing features in the evidence, the general conduct of the identified similarities masked the distinguishing features in the evidence. The probative value of the proposed discreditable conduct evidence failed to outweigh the risk of prejudice it created. Therefore, it was not admissible.

Per Abella J.A. (dissenting): While this was not a clear-cut case of admissibility of similar fact evidence, trial judges are entitled to strong deference in circumstances such as these. The potential prejudice arising from the similar fact evidence was outweighed by its probative value. The evidence was highly relevant to the issue of whether the offence actually happened. The similar fact evidence contained [page77 ]sufficient similarity to the alleged offence in terms of the circumstances in which the offences were committed, and the details of the offences themselves. While the risk of prejudice to the accused was high, the dangers were more than adequately addressed by the trial judge in her charge to the jury.

R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56, 213 D.L.R. (4th) 385, 290 N.R. 1, 164 C.C.C. (3d) 481, 1 C.R. (6th) 203, [2002] S.C.J. No. 57 (QL) (sub nom. R. v. H. (J.)), apld Other cases referred to 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.) (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. Harvey, [2002] 4 S.C.R. 311, 2002 SCC 80, 313 N.R. 190, 7 C.R. (6th) 1, 169 C.C.C. (3d) 576, [2002] S.C.J. No. 81 (QL), affg (2001), 2001 24137 (ON CA), 57 O.R. (3d) 296, 160 C.C.C. (3d) 52, 48 C.R. (5th) 247 (C.A.); R. v. K. (C.P.) (2002), 2002 23599 (ON CA), 62 O.R. (3d) 487, 171 C.C.C. (3d) 173, 7 C.R. (6th) 16 (C.A.); R. v. Shearing, [2002] 3 S.C.R. 33, 2002 SCC 58, 2 B.C.L.R. (3d) 201, 214 D.L.R. (4th) 215, 290 N.R. 225, [2002] 8 W.W.R. 395, 165 C.C.C. (3d) 225, 2 C.R. (6th) 213, [2002] S.C.J. No. 59 (QL) APPEAL from a conviction for sexual assault and sexual interference.

Shelley Hallett, for respondent. Nicholas A. Xynnis, for appellant.

[1] ABELLA J.A. (dissenting): -- The appellant was convicted after trial by judge and jury of one count of sexual assault and one count of sexual interference involving the eight-year- old female complainant, T.D. On July 25, 2000, he was sentenced to 18 months' incarceration plus three years' probation. This is an appeal from his conviction and sentence. The issue is the admissibility of similar fact evidence.

BACKGROUND

[2] The incident was alleged to have taken place in the summer of 1996. The complainant and her older brother F.D., who was ten at the time, were visiting the appellant with their father and his girlfriend. The two children were alone with the appellant in his apartment for a period of time that afternoon when their father and his girlfriend left to do some shopping.

[3] The complainant was the first witness called to testify about what took place at the appellant's apartment that afternoon. The complainant's evidence was that after her father and his girlfriend left, the appellant accompanied her and her brother to the swimming pool in his apartment complex. After the swim, they returned to the appellant's apartment. T.D. thought that she and her brother took a shower after they returned. [page78 ]

[4] T.D. testified that after her shower, she was alone with the appellant in his bedroom, while her brother watched television in the living room. She testified that she sat on the appellant's bed, clothed in one of his T-shirts, but without any underwear on. According to T.D., the appellant pointed a blow dryer on her vagina while she sat on his bed. She also testified that he blew on her vagina with his mouth and then kissed her vagina once. T.D. testified that she thought the appellant then told her that he was sorry and he would never do it again. After the incident, T.D walked out of the bedroom and joined her brother, who was watching television on the couch. She did not tell her brother what had happened, nor did she tell her father or her father's girlfriend when they returned to pick the children up at the appellant's apartment. Almost a year later, the complainant told her mother that the appellant kissed her "private parts".

[5] The complainant was subjected to extensive cross- examination, which exposed some inconsistencies in her evidence about the details of what had happened on the day in question. For example, the cross-examination revealed some confusion on T.D.'s part as to whether she had gone swimming once or twice on the date of the incident. There was also some confusion on T.D.'s part as to whether or not the sexual assault took place after a second swim, and whether she was wearing a bathing suit or street clothes to swim in.

[6] The complainant's brother F.D. also testified about the events of that day. According to F.D., neither he nor his sister had brought swimsuits with them on the afternoon in question, and both swam in their street clothes. F.D. thought he remembered that his sister was wearing shorts, and was certain that she was not wearing jeans. After the swim, he and his sister returned to the appellant's apartment, but, according to F.D., they did not take showers. F.D.'s evidence was that he watched television while T.D. went into the appellant's bedroom to put on a T-shirt. He testified that he could not hear anything in the bedroom and also agreed that he was not sure how long T.D. was in the appellant's bedroom. F.D. testified that his sister emerged from the bedroom wearing one of the appellant's T-shirts, and that she did not talk to him at all for the rest of the night.

[7] The appellant testified on his own behalf and contradicted both T.D. and F.D.'s version of what happened when they returned to his apartment that afternoon. According to the appellant, the two children did not bring their swimsuits, and swam in their street clothes. When the three returned to his apartment, he put both children in his bedroom and gave them dry towels and T-shirts to wear. The appellant testified that he and F.D. had [page79 ]to help T.D. take off her jeans, as they were wet and were a struggle to remove. He gave T.D. a comforter to keep warm and then went down the hall to place their wet clothing in a dryer. When he returned, T.D. was still sitting on his bed and she asked for an extra towel and a blow dryer, which he gave her. T.D. came out of the bedroom a short time later and all three watched television until the children's father and his girlfriend returned. The appellant testified that he did not kiss T.D.'s vagina, nor did he blow on or point a blow dryer at her vagina.

[8] After the conclusion of the testimony of T.D. and F.D., the trial judge ruled that the Crown was permitted to call similar fact evidence in the form of testimony from two witnesses who had been complainants in the appellant's two prior convictions for sexual assault. The application was allowed on the basis of a summary of anticipated evidence of the two witnesses. While the witnesses were in their 20s when they testified at trial, both incidents took place 13 and 14 years prior to trial, when the witnesses were children under the age of ten.

[9] The first of these two witnesses was M.O., who was 24 at the time of trial. The appellant was convicted for sexually assaulting her in 1986, when she was ten years old. M.O.'s evidence was that she and a girlfriend went to an apartment- church complex where the appellant worked as a superintendent. The appellant had taken both girls to the roof of the complex and then carried M.O.'s girlfriend downstairs on his back. M.O. then found herself alone with the appellant, and he offered to show her the chapel in the building. After showing her the chapel, he offered M.O. a piggyback ride. M.O.'s testimony was that during the piggyback ride, the appellant rubbed her vagina with his thumb on the outside of her clothing while breathing heavily. M.O. testified that the appellant apologized after the incident and told her it would not happen again. The appellant was convicted of this offence in 1987 and received a suspended sentence. There was evidence that M.O., at the age of 21, pleaded guilty to a charge of fraud for which she received a conditional discharge.

[10] The second witness was J.B., who is related to the appellant and was 21 at the time of trial. J.B.'s testimony was that in 1987, when he was eight years old, the appellant asked him if he wanted to see the inside of his van. While the two were alone inside the van, they began "play wrestling". J.B. testified that the appellant first touched the boy's penis on the outside of his clothing then slid his hand inside his shorts and touched his penis directly. J.B. testified that when the incident ended, the appellant told him not to tell anyone what had happened. The [page80 ]appellant pleaded guilty to the charge of sexual assault on J.B. and was convicted of the offence in 1988.

[11] In his testimony, the appellant denied any intentional sexual touching of M.O. and J.B. With respect to M.O.'s evidence, he testified that he did not intentionally rub her vagina from outside her clothes, but suggested that she may have been stuck by a pager that was hooked to his pants. Finally, in response to his relative's testimony, the appellant's evidence was that while the two were play fighting, the boy kicked him in the groin. The appellant responded by grabbing the boy's genitals over his pants and asking him "how do you like that?" The appellant described this as a "playful grab" that was "unintentional".

[12] The jury returned a finding of guilt on the charges of sexual assault and sexual interference involving T.D. The sentencing hearing was held six months after the jury verdict. The appellant was sentenced to 18 months in custody and a further three years' probation.

ISSUES

[13] On appeal, the appellant argues that the trial judge erred by admitting the similar fact evidence and by failing to adequately review the evidence and the positions of the parties in her charge to the jury. The appellant also seeks leave to appeal his sentence.

ANALYSIS

Similar Fact Evidence

[14] In ruling on the admissibility of the evidence of M.O. and J.B., the trial judge instructed herself in accordance with the four-part test for admitting evidence of prior discreditable conduct set out in R. v. B. (L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35, 116 C.C.C. (3d) 481 (C.A.), at p. 43 O.R., p. 490 C.C.C.:

The trial judge who is charged with the delicate process of balancing the probative value of the proposed evidence against its prejudicial effect should inquire into the following matters.

1. Is the conduct, which forms the subject matter of the proposed evidence, that of the accused?

2. If so, is the proposed evidence relevant and material?

3. If relevant and material, is the proposed evidence discreditable to the accused?

4. If discreditable, does its probative value outweigh its prejudicial effect? [page81 ]

Defence counsel at trial and on this appeal conceded that the first three criteria in the foregoing test are met. It is submitted by the appellant that the trial judge erred in concluding on the final criterion that the probative value of the evidence outweighs its prejudicial effect.

[15] The trial judge did not have the benefit of the Supreme Court of Canada's decision R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, 164 C.C.C. (3d) 481, which sets out what is now the guiding test for assessing whether probative value outweighs prejudicial effect in determining the admissibility of similar fact evidence. Based on the analytic framework set out in Handy, in my view the evidence of M.O. and J.B. was properly admitted.

[16] According to the analysis in Handy, probative value is assessed by considering the strength of the similar fact evidence (para. 102); identifying the issue at the trial to which the proposed similar facts are said to be relevant (paras. 69-75); and by identifying the factors that connect or distinguish the similar fact evidence from the facts alleged in the charge and the degree of similarity required to make the proposed evidence admissible (Handy, at paras. 76-84).

i. The strength of the evidence

[17] This factor relates simply to the extent to which the evidence can be proven and any allegations of collusion. As set out above, defence counsel conceded the strength of the evidence at trial and on this appeal. The accused was convicted after trial of one of the former incidents of sexual abuse and pleaded guilty to the other. This factor in the Handy framework is therefore satisfied.

ii. Identification of the issue

[18] The second consideration relates to the correct identification of the issue at trial of which the similar fact evidence is said to be probative. The trial judge held that the evidence of discreditable conduct in this case was probative of several issues "other than [the appellant's] propensity to sexually assault young children". In the words of the trial judge, these issues were: "the credibility of the minor complainant, the credibility of the allegations against [the appellant], [the appellant's] credibility and character, a pattern of behaviour on the part of [the appellant], and the rebuttal of the defence of innocent association". Earlier in her ruling, the trial judge instructed herself that, in weighing the probative value of the evidence of the discreditable conduct against its inherently prejudicial nature"the question is whether the incident alleged by T.D. occurred." [page82 ]

[19] On one hand, it may be argued that the trial judge framed the issue too broadly in identifying it as the complainant's credibility. In Handy, at paras. 115-16, Binnie J. cautioned against framing the "issue in question" merely in terms of credibility. It is useful to reproduce his comments on this point:

Care must be taken not to allow too broad a gateway for the admission of propensity evidence or, as it is sometimes put, to allow it to bear too much of the burden of the Crown's case [citation omitted]. Credibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence.

Anything that blackens the character of an accused may, as a by-product, enhance the credibility of a complainant. Identification of credibility as the "issue in question" may, unless circumscribed, risk the admission of evidence of nothing more than general disposition.

[20] In this case, the trial judge did not frame the issue merely in terms of credibility, but circumscribed it in terms of the conflicting testimony with respect to whether the sexual abuse of T.D. occurred at all. It was proper for the trial judge to describe the issue in terms of "whether the incident alleged by T.D. occurred".

iii. The relative cogency of the factors connecting, and distinguishing, the similar fact evidence, and the evidence of the offences charged

[21] The third factor in assessing probative value is an assessment of the similarities and dissimilarities between the facts charged and the similar fact evidence. Binnie J. sets out a non-exhaustive list of some of the factors connecting similar facts to the circumstances set out in the charge. These connecting factors may, but need not, include the proximity in time of the similar acts to the offence charged; the extent to which the other acts are similar in detail to the offence alleged; the number of occurrences of the similar acts; circumstances surrounding or relating to the similar acts; distinctive features unifying the incidents; intervening events; and any other factor which would tend to support or rebut the underlying unity of the similar acts (Handy, at para. 82). It is important to keep in mind that "not every factor is useful in every case, and . . . cogency also depends on the other evidence" (Handy, at para. 121). The trial judge's reasons evince a proper consideration of each of these factors in the probative value analysis.

[22] The trial judge began her ruling by highlighting the similarities between the assaults of M.O. and J.B. and the alleged assault of T.D. Her reasons in that regard are as follows: [page83 ]

On the matter of the similarities between the assaults of M.O. and J.B., when compared to the alleged assault of T.D., the similarities are:

At the time that they were assaulted all three complainants were aged ten and under. M.O. was ten years old, J.B. was eight years old, and T.D. was eight years old.

At the time of each of these incidents, [the appellant] was alone with the complainants. In the case of M.O., the evidence is that he suggested to her that she accompanied him to see the inside of a church which she says he described as being "really pretty". The church was part of the premises of an apartment building where [the appellant] was a superintendent.

In the case of J.B., the evidence is that [the appellant], after taking J.B. to play video games, took J.B. to his van parked in a parking lot in front of the apartment building where J.B.'s grandmother lived. The evidence is that Blake asked J.B. if he wanted to "check out" the van . . .

In the case of the current complainant, T.D., [the appellant] was alone with T.D. in his bedroom in his apartment located in the building where [the appellant] was superintendent.

It is significant to my disposition of this motion that, in all three incidents, there was a component of privacy created by [the appellant] in that [the appellant] lured the complainants to this private setting . . . In the case of M.O. it was the opportunity to see the church. In the case of J.B., it was the opportunity to see the back of the van. And in the case of T.D., it was getting changed into dry clothes.

In the case of M.O., the police synopsis records that, after [the appellant] touched her private parts, he told her he was sorry and it would not happen again.

In the case of J.B., [the appellant] told his nephew not to tell anyone what had happened.

In the case of T.D., her evidence was unclear although the suggestion was put to her and she confirmed the possibility of similar words having been used.

In the case of M.O., J.D. and T.D., the complaints involved a brief touching of the genitals. No intercourse or penetration took place.

[23] Cogency arises from the circumstances surrounding or relating to the similar acts and the alleged act against T.D. As the trial judge noted, the appellant committed the similar acts in circumstances where he had created a component of privacy. That is, in the two prior incidents and the alleged incident involving T.D., the appellant took advantage of a situation where a component of privacy could be created by inviting the young person into a private location. In the case of M.O., this involved an invitation into the chapel and in the situation involving J.B., the appellant invited the young boy inside of his van. This is similar to the situation described by T.D., where she found herself alone with the appellant in his bedroom in order to receive dry clothing after her swim. [page84 ]

[24] Most notable, perhaps, is the extent to which the evidence of the prior acts of sexual abuse is similar in detail to the offence charged. The two prior acts were committed on children who, like the complainant in this case, were ten years old or younger. The incidents involved brief touching of the children's genitalia and did not involve intercourse or penetration or any invitation to the children to touch the appellant himself. As well, the two prior assaults, as well as the alleged assault, were followed by the appellant either apologizing to the child, or telling them not to disclose what had happened.

[25] With respect to distinctive features unifying or distinguishing the similar acts and the offence charged, the appellant submits that peculiar details of the offence charged -- namely, the allegation that he pointed a blow dryer at T.D.'s vagina and kissing her vagina -- were distinct from, and thereby dissimilar to, the other two instances of sexual abuse, which involved brief genital touching. The distinctiveness of the manner of sexual touching in the alleged offence against T.D. does not obscure the number of similarities. It could just as easily be said that the brevity of the alleged assault against T.D., and the fact that it involved brief genital touching by the appellant only -- whether or not it occurred with the hair dryer -- is more indicative of similarity or connectedness between the two prior assaults than not.

[26] It is also important to note the dissimilarities of the similar act evidence. First, there was a time lapse of over ten years between the assaults against M.O. and J.B. and those forming the subject matter of the charge. Second, one of the previous instances of sexual assault involved a young male, while the other instance and the offence before this court involved young females.

iv. Potential prejudice arising from the similar fact evidence

[27] Consideration of prejudicial effect of the similar fact evidence involves an assessment of the potential for "moral prejudice" and "reasoning prejudice" that may arise through admission of the similar fact evidence. The former type of prejudice refers to the risk of conviction where guilt is inferred from general disposition or propensity. The latter refers to the risk of distracting or confusing the jury, or of undue consumption of time, as well as the potential that the jury may have difficulty disentangling the subject matter of the charges from the similar fact evidence (Handy, at paras. 137-47).

[28] The trial judge averted to these precise dangers in her ruling on the similar fact evidence application. On the issue of potential prejudice, the trial judge wrote: [page85 ]

There is the risk of deflecting focus from the issues in this case and there is the peril of providing motivation to punish for past misconduct . . . The prejudice . . . can be expressed in simple terms. It is that the jury will conclude that, because of past discreditable conduct, [the appellant] committed the offence for which he now stands charged.

While recognizing the dangers of admitting the similar fact evidence, the trial judge concluded that the correct admonitions to the jury would sufficiently reduce the potential prejudicial effect of the similar fact evidence and ensure the correct treatment of this evidence by the jury.

[29] In her charge to the jury, the trial judge repeatedly emphasized the proper use of the evidence of M.O. and J.B. and specifically instructed the jury on the uses to which the evidence was not to be put. The relevant portion of the charge is:

I have to caution you, at the risk of repeating myself, about the use of the evidence of [the appellant's] past discreditable conduct . . . Just because [the appellant] committed these two previous offences, you cannot, and I emphasize, you cannot assume that he is a bad person who would be likely to have committed the offences for which he now stands charged.

The second thing that I must warn you about is that you cannot, having heard the evidence of the past offences, try to punish him for his past misconduct by finding him guilty of the offences with which he is now charged and which are contained in the indictment.

The third thing that I must alert you to is that you must not focus on whether or not [the appellant] committed the previous offences. If you were to do so, your attention would be sidetracked or distracted from the key question that you must decide in this case, namely, whether or not [the appellant] is guilty of the offences for which he now stands charged.

The jury was thus clearly instructed on all of the dangers and misuses of the similar fact evidence. The charge dealt with the risk of conviction based on both a desire to punish and a perceived general disposition to sexually abuse young children. The trial judge also dealt with the dangers of reasoning prejudice by cautioning the jury against undue focus on the similar fact offences, and warning jurors to focus on the facts of the offence charged.

v. Conclusion on similar fact evidence

[30] I acknowledge that this is not a clear-cut case of admissibility of the similar fact evidence, but I am, in the end, guided by the strong deference to be accorded to trial judges in circumstances such as these. This deference was articulated in, among other cases, R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, 55 C.C.C. (3d) 1, at p. 739 S.C.R., p. 28 C.C.C., where McLachlin J., admitting similar fact evidence with a time lapse of almost ten years, [page86 ]summarized the approach to be taken by an appellate court in such cases:

While I may have found this case to have been a borderline case of admissibility if I had been the trial judge, I am not prepared to interfere with the conclusion of the trial judge, who was charged with the task of weighing the probative value of the evidence against its prejudicial effect in the context of the case as a whole.

[31] The importance of deference was also emphasized by this court in R. v. Harvey (2001), 2001 24137 (ON CA), 57 O.R. (3d) 296, 160 C.C.C. (3d) 52 (C.A.), affd 2002 SCC 80, [2002] 4 S.C.R. 311, 169 C.C.C. (3d) 576, where Doherty J.A., at paras. 44 and 50, stated that:

The strongly deferential approach to trial judges' decisions as to the admissibility of similar fact evidence continues to play a key role in the jurisprudence: R. v. Arp, supra . . .

If an appellate court is satisfied that on a proper appreciation of the evidence and a proper application of the applicable test for admissibility there is only one reasonable result, either admission or exclusion, the appellate court should intervene if the trial judge did not arrive at that result. If, however, the case is one in which the evidence is such that different trial judges acting reasonably could come to different conclusions as to the admissibility of the evidence depending on their assessments of probative value and prejudicial effect, then the appellate court must defer to the decision of the trial court.

[32] The Supreme Court of Canada recently rearticulated this principle of substantial deference in Handy, at para. 153, citing R. v. B. (C.R.).

[33] In my view, the potential prejudice arising from the evidence of M.O. and J.B. was outweighed by its probative value. The evidence was highly relevant to the issue of whether the offence against T.D. ever actually happened. The similar fact evidence contained sufficient similarity to the alleged offence against T.D. in terms of the circumstances in which the offences were committed, and the details of the offences themselves. Finally, while the risk of prejudice to the appellant was undoubtedly high, as it inevitably can be when similar fact evidence is admitted, in this case, given the similarity of the offences forming the similar fact evidence and the subject matter of the charge, these dangers were more than adequately addressed by the trial judge in her charge to the jury. While the admission of similar fact evidence is exceptional, the similarities in the evidence of the similar acts of the appellant to the allegations forming the subject matter of the charge justify the admission of the evidence in this case.

[34] Where, as here, the probative value of similar act evidence lies in its similarity with the charged offence, its admissibility [page87 ]turns on whether the similarities disclose a propensity with the requisite degree of specificity to justify reception of the evidence despite the unfair prejudice to the accused. The similar fact evidence in this case falls at the admissible end of the spectrum as it discloses a type of circumstance in which the appellant is disposed to sexually abuse children in a particular way. The issue in question is not the appellant's general disposition to sexually abuse children but rather whether the evidence is probative of repeated conduct of a similar type in a specific type of situation. The trial judge adequately summarized the similarities that support the permissible inference with respect to the specific propensity of the appellant to sexually abuse children in a particular way. In her charge to the jury, the trial judge summarized the similarities that justified the reception of the similar fact evidence. The trial judge referred to the fact that the incidents were characterized by a component of privacy created by the appellant and that each involved a brief touching of the genitals with no intercourse or penetration. She also reviewed the evidence that at the conclusion of each incident the appellant either apologized or told the complainant not to disclose what had happened.

[35] I would therefore defer to the trial judge's ruling.

CHARGE TO THE JURY

[36] The appellant takes issue with the jury charge in its entirety, submitting that it did not meaningfully review the evidence in the case, the positions of the parties and the evidence relevant to those positions.

[37] As set out above, I think the cautionary instruction to the jury with respect to the similar fact evidence was a proper one. The balance of the charge set out the positions of the parties adequately. This was not a complicated case and the main evidentiary discrepancy related to the contradictory accounts of the events given by the appellant and the complainant. Given the simplicity of contested issues at trial, the charge was sufficiently comprehensive and fair and there is no reason to give effect to this ground of appeal.

SENTENCE APPEAL

[38] The appellant also seeks leave to appeal his sentence. He submits that the length of the custodial sentence is too long and failed to take into account mitigating factors, such as the fact that he had not been convicted of an offence in the previous 12 years and was, at the time of trial, gainfully employed and the [page88 ]sole source of support for his wife. The appellant also submits that given the circumstances of the offence, he does not present a danger to the community and is eligible for a conditional form of imprisonment.

[39] As the respondent points out in its factum, there were a number of aggravating factors to justify the custodial sentence of 18 months. These include the recognition of the gravity of a sexual offence on a child and the appellant's record for the same offences. As well, the expert called by the appellant at the sentencing hearing gave evidence of the appellant's failure to address his diagnosis of pedophilia which had been assessed eight years earlier. Given the seriousness of the offence and the appellant's criminal record, the trial judge did not err in rejecting a conditional sentence in the appellant's case. For the same reasons the length of the custodial sentence was within the appropriate range and there is no reason for interfering with the sentence imposed by the trial judge.

[40] Accordingly, I would dismiss the appeal, both from conviction and from sentence.

[41] SIMMONS J.A. (ARMSTRONG J.A. concurring): -- I have had the benefit of reading the reasons of my colleague Abella J.A. As noted by my colleague, the trial judge did not have benefit of the Supreme Court of Canada's recent decisions in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, 164 C.C.C. (3d) 481 and R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, 165 C.C.C. (3d) 225. Considered in light of the Handy analytic framework, in my respectful view, as a result of the cumulative effect of five aspects of her reasoning the trial judge set the threshold for admissibility of the discreditable conduct evidence too low. Accordingly, I respectfully disagree with my colleague's conclusion that the discreditable conduct evidence was admissible. I would allow the appeal, set aside the conviction, and order a new trial.

[42] I agree with my colleague's statement of the relevant facts. However, before turning to my analysis, I wish to highlight certain features of the trial judge's reasons that I consider to be important.

I. THE TRIAL JUDGE'S REASONS

[43] The trial judge began her analysis by identifying the similarities between the discreditable conduct evidence and the evidence of the complainant. My colleague has already quoted this part of the trial judge's reasons. However, I will repeat the quotation for ease of reference: [page89 ]

. . . the similarities are:

(1) At the time that they were assaulted, all three complainants were aged ten and under. M.O. was ten years old, J.B. was eight years old, and T.D. was eight years old.

(2) At the time of each of these incidents, B. was alone with the complainants. In the case of M.O., the evidence is that he suggested to her that she accompany him to see the inside of a church which she says he described as being "really pretty". The church was part of the premises of an apartment building where B. was a superintendent.

In the case of J.B., the evidence is that B., after taking J.B. to play video games, took J.B. to his van parked in a parking lot in front of the apartment building where J.B.'s grandmother lived. The evidence is that B. asked J.B. if he wanted to "check out" the van. J.B. is B.'s nephew.

In the case of the current complainant, T.D., B. was alone with T.D. in his bedroom in his apartment located in the building where B. was superintendent.

It is significant to my disposition of this motion that, in all three incidents, there was a component of privacy created by B. in that B. lured the complainants to a private setting . . . In the case of M.O., it was the opportunity to see the church. In the case of J.B., it was the opportunity to see the back of the van. And in the case of T.D., it was getting changed into dry clothes.

In the case of M.O., the police synopsis records that, after B. touched her private parts, he told her he was sorry and it would not happen again.

In the case of J.B., B. told his nephew not to tell anyone what had happened.

In the case of T.D., her evidence was unclear although the suggestion was put to her and she confirmed the possibility of similar words having been used.

In the case of M.O., J.B. and T.D., the complaints involved a brief touching of the genitals. No intercourse or penetration took place.

[44] The trial judge turned next to the issue in the trial to which the proposed evidence was said to be relevant and to the question of whether the probative value of the evidence outweighed its potential prejudice. She identified the relevant issue as "whether the incident alleged by T.D. occurred" and then itemized the considerations set out by this court in R. v. B. (L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35, 116 C.C.C. (3d) 481 (C.A.) as being relevant to probative value and prejudicial effect.

[45] On the question of probative value, the trial judge said:

The evidence of discreditable conduct in this case is probative of several issues other than B.'s propensity to sexually assault young children. These issues include the credibility of the minor complainant, the credibility of the allegations against B., B.'s credibility and character, a pattern of behaviour on the part of B., and the rebuttal of the defence of innocent association.

(Emphasis in the original)

[46] On the question of prejudicial effect, the trial judge noted the following risks of prejudice arising from the evidence: the risk [page90] of deflecting focus from the issues in the case; the peril of providing motivation to punish for past misconduct; and the risk that the jury would use the discreditable conduct evidence to conclude that B. committed the offences with which he was charged.

[47] The trial judge completed her analysis by concluding that the risks of prejudice arising from the evidence could be adequately addressed by admonishing the jury concerning the proper treatment of the evidence.

II. ANALYSIS

(A) The Handy Analytic Framework

[48] This court summarized the main components of the Handy analytic framework in R. v. K. (C.P.). [see Note 1 at the end of the document] Without repeating the entire summary, the highlights [at pp. 495-96 O.R.] are as follows:

-- evidence of other discreditable conduct is presumptively inadmissible;

-- evidence of other discreditable conduct may be admitted where the prosecution establishes, on a balance of probabilities"that in the context of a particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception";

-- probative value may be assessed in the following manner:

-- by considering the strength of the similar fact evidence, including the extent to which the evidence can be proven and any allegations of collusion . . .;

-- by identifying the "issue in question" and its relative importance in the particular trial;

-- by identifying the factors that connect or distinguish the similar fact evidence to or from the facts alleged in the charge and the degree of [connection] required to make the proposed evidence admissible. [see Note 2 at the end of the document] [page 91]

-- if the similar fact evidence "is not properly capable of supporting the inferences sought by the Crown, generally, the analysis need go no further";

-- potential prejudice to the accused may be assessed in the following manner:

-- by considering the potential for "moral prejudice" against the accused, meaning the risk of convicting the accused because he is a "bad person" rather than based on proof that he committed this offence.

-- by considering the potential for "reasoning prejudice" against the accused, meaning the risk of distracting or confusing the jury, or of undue consumption of time, and the danger that the jury may have difficulty disentangling the subject matter of the charges from the similar fact evidence.

(B) Application of the Handy Analytic Framework to the Facts of this Case

[49] As already noted, in my respectful view, reviewed with the benefit of the Handy analytic framework, the cumulative effect of five aspects of the trial judge's reasoning led her to set the threshold for admissibility of the discreditable conduct evidence too low:

(i) she framed the issue in question too widely, allowing too broad "a gateway" for the admission of discreditable conduct evidence;

(ii) she did not identify the degree of connection to the alleged offence required to make the discreditable conduct evidence admissible;

(iii) in assessing the cogency of the discreditable conduct evidence, she relied primarily on generic similarities between it and the evidence of the complainant;

(iv) in assessing the cogency of the discreditable conduct evidence, she did not identify the features of proposed evidence that distinguished it from the evidence of the complainant; and

(v) she failed to recognize the significant moral prejudice arising from the generic quality of the similarities she identified.

[50] Moreover, applying the Handy analytic framework to the facts of this case, I conclude that the discreditable conduct evidence was not admissible. [page92 ]

i. The strength of the evidence

[51] As noted by my colleague, defence counsel conceded the strength of the discreditable conduct evidence at trial and it is not an issue on appeal.

ii. Identification of the issue in question

[52] Initially, the trial judge framed the issue in question as "whether the incident alleged by T.D. occurred". However, she later found that the discreditable conduct evidence was probative of several issues "other than [the appellant's] propensity to sexually assault young children". Those issues were the credibility of the complainant, the credibility of the allegations, B.'s credibility and character, a pattern of behaviour on the part of B., and rebuttal of the defence of innocent association.

[53] As noted by my colleague, at paras. 116 and 117 of Handy, Binnie J. cautioned that framing "the issue in question" as credibility may result in "too broad a gateway for the admission of propensity evidence" therefore "risk[ing] the admission of evidence of nothing more than general disposition ('bad personhood')". In particular, he noted that when the issue in question is framed as the complainant's credibility"[a]nything that blackens the character of [the] accused" tends to enhance the credibility of the complainant.

[54] One of the purposes of identifying the issue in question is to assist in determining the degree of connection necessary to make the discreditable conduct evidence admissible. In this case, the trial judge did not discretely identify the standard that she used. However, as I will explain more fully below, in admitting the discreditable conduct evidence the trial judge relied primarily on generic similarities to the complainant's evidence and did not consider the distinguishing features in the evidence. In my view, characterizing the issue in question, at least in part, as credibility played a significant role in the trial judge's determination that the proposed evidence was sufficiently similar to the complainant's evidence to warrant its admission.

[55] Moreover, I do not consider that the trial judge's reference to additional issues cured the problems associated with framing the issue in question, at least in part, as credibility. Read in context, the trial judge's reference to a pattern of behaviour on the part of the appellant referred to a potential inference to be drawn from the evidence and was not intended to identify an issue at the trial in the manner contemplated by the Handy analytic framework. [page93 ]

[56] In addition, when the trial judge referred to "rebuttal of the defence of innocent association", she was really referring to whether the incident occurred and not identifying a distinct issue that might permit the admission of discreditable conduct evidence based on a different degree of connection. Unlike one of the earlier incidents in which the appellant was involved, in this case, there could be no suggestion that the form of touching alleged by the complainant was accidental or that the complainant misconstrued its true character.

iii. The relative cogency of the factors connecting, and distinguishing, the discreditable conduct evidence and the evidence of the offences charged; and the degree of connection required to make the proposed evidence admissible

[57] Analyzed under this heading, three aspects of the trial judge's reasoning led her to set the threshold for admissibility too low.

[58] First, the trial judge failed to identify the degree of connection to the alleged offence necessary to make the proposed evidence admissible.

[59] At paras. 76 to 80 of Handy, Binnie J. discussed the necessity and importance of this step:

The principal driver of probative value in a case [involving similar fact evidence] . . . is the connectedness (or nexus) that is established between the similar fact evidence and the offences alleged, particularly where the connections reveal a "degree of distinctiveness or uniqueness" [citation omitted]. As stated by Cory J. in Arp, at para. 48:

. . . where 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.

The issue in the present case is not identification but the actus reus of the offence. The point is not that the degree of similarity . . . must be higher or lower than in an identification case. The point is that the issue is different, and the drivers of cogency in relation to the desired inferences will therefore not be the same [emphasis in the original].

If, for example, the complainant in this case had not been able to identify the respondent as the perpetrator of the alleged offence, the conduct described by the ex-wife was not so "particular and distinctive" as to amount to a "signature" or "fingerprints at the scene of the crime" that would safely differentiate him from other possible assailants. [page94 ]

On the other hand, in a case where the issue is the animus of the accused towards the deceased, a prior incident of the accused stabbing the victim may be admissible even though the victim was ultimately shot -- the accused says accidentally . . . The acts could be said to be dissimilar but the inference on the "issue in question" would nonetheless be compelling.

[60] In Shearing, where the issue in question was, in part, whether some of the alleged incidents occurred, Binnie J. concluded, at para. 48, that"a persuasive degree of connection between the discreditable conduct evidence and the offence charged" is required. As the issue in question in this case was the same, I conclude that the same degree of connection was required.

[61] Second, in finding the proposed discreditable conduct evidence admissible, the trial judge relied primarily on generic similarities between the proposed evidence and the allegations of the complainant. In describing the similarities as generic, I mean that the identified similarities describe general, rather than specific, aspects of the conduct and contain limited detail, with the result that the identified similarities are likely to be present in most incidents of sexual touching involving children.

[62] Broadly stated, the similarities identified by the trial judge can be summarized as follows:

-- the appellant had sexually touched children aged ten years or under on two occasions in the past;

-- both prior incidents involved genital touching;

-- both prior incidents occurred in private; and

-- the appellant told one of the children that he was sorry and that it would not happen again.

[63] In my view, these descriptions relate to non-specific conduct and lack detail. Moreover, the fact that none of the incidents involved more intrusive conduct does not change the generic quality of the identified similarities.

[64] The risk in relying primarily on generic similarities to support an inference that the actus reus occurred is twofold. One, the initial inference arising from the prior conduct becomes so general, that it approaches bad personhood. Two, because of their non-specific character, generic similarities may mask underlying dissimilarities that could be important in a particular case.

[65] In this case, the initial inference that can be drawn from the identified similarities in the appellant's past conduct amounts to little more than that he has engaged in genital touching of children aged ten or under in the past, in circumstances [page95 ]involving privacy, and that following the sexual abuse, he may apologize to the child. Although not irrelevant, this inference contributes only marginally to determining whether the specific incident described by the complainant actually took place.

[66] Third, the trial judge did not identify the features of the proposed discreditable conduct evidence that distinguished it from the complainant's evidence. As a result, she did not consider the impact of the distinguishing features on the probative force of the proposed evidence.

[67] In this case, the significance of the distinguishing features in the evidence is best highlighted by reviewing the Handy list of connecting factors:

-- proximity in time of the similar acts to the alleged offence -- the discreditable conduct incidents occurred approximately nine years and ten years prior to the alleged offence and therefore were remote in time from it;

-- the extent to which the other acts are similar in detail to the alleged offence -- apart from the generic similarity that all of the incidents involved touching children's genitals, none of the incidents are similar in detail. Moreover, the incident described by the complainant is somewhat distinctive, in that it involved oral contact and use of an item external to the appellant's body;

-- the number of occurrences of the similar acts -- two;

-- circumstances surrounding or relating to the similar acts -- all of the incidents occurred in circumstances involving privacy;

-- any distinctive features unifying the similar acts and the offence charged -- none;

-- any intervening events -- none; and

-- any other factor which would tend to support or rebut the underlying unity of the similar acts and the offence alleged -- none.

[68] In Handy, Binnie J. noted that remoteness in time increases the possibility of character reform and may also affect the relevance and reliability of discreditable conduct evidence. [see Note 3 at the end of the document] [page96] In addition, the small number of incidents and their remoteness from the incident in question diminishes their probative value as a pattern of conduct.

[69] I conclude that apart from generic similarities, there are no distinctive unifying features of the discreditable conduct evidence and the complainant's evidence. Moreover, particularly when considered in conjunction with the distinguishing features of the evidence (including remoteness in time), the identified similarities fail to establish a persuasive degree of connection.

iv. Potential prejudice

[70] Turning to the potential prejudicial effect of the proposed evidence, the trial judge carefully identified many of the risks arising from the evidence. In my view, however, she failed to recognize that relying primarily on generic similarities to justify admission of the discreditable conduct evidence magnified the risk that the jury would misuse it. The reason for this is twofold. First, the inference arising from the prior conduct came closer to bad personhood, increasing the risk that the jury would reason that because the appellant had sexually touched children in the past, he must have done so on this occasion. Second, particularly because the trial judge did not identify the distinguishing features in the evidence, the general nature of the identified similarities masked the distinguishing features in the evidence.

[71] I conclude that the probative value of the proposed discreditable conduct evidence failed to outweigh the risk of prejudice it created and therefore, that it was not admissible.

III. DISPOSITION

[72] For the reasons given, I would allow the appeal, set aside the appellant's conviction, and order a new trial.

Appeal allowed. [page97]

Notes

Note 1: (2002), 2002 23599 (ON CA), 62 O.R. (3d) 487, 171 C.C.C. (3d) 173 (C.A.).

Note 2: In R. v. K. (C.P.), this court described this step as [at pp. 495-96 O.R.]:

• by identifying the factors that connect or distinguish the similar fact evidence to or from the facts alleged in the charge and the degree of similarity required to make the proposed evidence admissible.

(Emphasis added)

However, considered in light of Shearing, this step is more precisely described as noted above.

Note 3: Handy, at para. 122.