W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:

486.(3) Subject to subsection (4), where an accused is charged with

(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,

the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6.

DATE: 20030203

DOCKET: C36528

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) –and– R. N. (Respondent)

BEFORE: MORDEN, LASKIN and FELDMAN JJ.A.

COUNSEL: Christopher Webb, for the appellant

Melvin Green, for the respondent

HEARD: January 16, 2003

RELEASED ORALLY: January 16, 2003

On appeal from the acquittal entered by Justice Frank R. Caputo, sitting with a jury, on May 25, 2001.

E N D O R S E M E N T

[1] The Crown appeals from the respondent’s acquittal on the ground that the trial judge erred in refusing to permit it to lead similar act evidence. In support of its appeal the Crown advances four submissions:

(i) The trial judge wrongly applied a higher standard of admissibility than it should have for similar act evidence tendered in support of the credibility of the complainant;

(ii) The trial judge considered each proposed similar act in isolation instead of considering the evidence cumulatively;

(iii) The trial judge both misapplied the test for admissibility by giving undue weight to the dissimilarities in the similar act evidence and also misapprehended some of the evidence of the similar act witnesses; and

(iv) The trial judge erred in concluding that the jury would be overwhelmed if the similar act evidence were admitted and that no instruction could overcome the prejudicial effect of this evidence on the jury.

[2] Before dealing with these submissions we make two introductory observations. First, and contrary to the position asserted by the respondent in his factum, the admissibility of similar act evidence is a question of law. See R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3rd) 481 at 522 (S.C.C.). Thus, the Crown may properly appeal the trial judge’s ruling to this court.

[3] Second, the trial judge’s ruling is a discretionary order and is therefore entitled to significant deference on appeal. Absent an error in principle or an unreasonable exercise of discretion, this court should not interfere. See R. v. Harvey (2001), 160 C.C.C. (3rd) 52 (Ont.C.A.).

[4] We turn now to the Crown’s submissions. Overall, we are not persuaded that the trial judge erred in his ruling, and therefore, we would not give effect to the Crown’s position.

(i) We do not agree that the trial judge applied a higher standard of admissibility than required. Although the trial judge referred to a passage from the reasons of Finlayson J.A. in R. v. Rulli (1999), 134 C. C. C. (3rd) 465 that arguably is no longer correct (see Handy, supra) he began his discussion of the applicable legal principles by reciting a lengthy passage from the reasons of Charron J.A. in Handy (2000), 48 O.R. (3d) 257 (C.A.), which accurately recited the applicable standard. The judgment of this court in Handy was affirmed by the Supreme Court of Canada. We are therefore satisfied that the trial judge applied the proper standard.

(ii) We do not agree that the trial judge considered the similar act incidents separately. A fair reading of the trial judge’s reasons, especially at paragraphs 40-44, shows that he considered the similar acts together or cumulatively.

(iii) Weighing the similarities and dissimilarities lies within the discretion of the trial judge. Although other judges might have looked at the evidence differently, the trial judge’s balancing is entitled to deference unless it reflects an error in principle or is otherwise unreasonable, neither of which the Crown has demonstrated here. Further, we are not persuaded that the trial judge’s findings of fact reflect any significant misapprehension of the evidence, having regard to the issue that he had to resolve.

(iv) The Crown’s last submission is essentially an attack on the trial judge’s finding that the prejudicial effect of the proposed evidence outweighed its probative value. Again, this balancing belongs to the province of the trial judge. We see no basis to interfere with the trial judge’s finding.

[5] For these reasons, the Crown’s appeal against the respondent’s acquittal is dismissed.

Signed : “J.W. Morden J.A.”

“John Laskin J.A.”

“K. Feldman J.A.”