DATE: 20060208
DOCKET: C40300
COURT OF APPEAL FOR ONTARIO
FELDMAN, SHARPE and ROULEAU JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Brian Greenspan and Joanne Stuart for the appellant
Respondent
- and -
OCTAVIAN CANDALE
Deborah Krick for the respondent
Appellant
HEARD: February 1, 2006
On appeal from the judgment of Mr. Justice Patrick Flynn of the Superior Court of Justice dated June 16, 2003 dismissing a summary conviction appeal from a conviction entered by Madam Justice M.F. Woolcott of the Ontario Court of Justice.
SHARPE J.A.:
[1] The central issue on this appeal from the dismissal of a summary conviction appeal from a conviction for sexual assault relates to the admissibility of a previous conviction of sexual assault as similar fact evidence.
[2] For the following reasons, I would grant leave to appeal, allow the appeal, set aside the conviction and order a new trial.
[3] The eighteen-year old complainant alleged that the appellant, her employer at a gas station, had touched her buttocks on three occasions and, on one occasion, grabbed her in the crotch. The crown alleged that the appellant had engaged in a pattern of conduct that included gifts and favours and inappropriate physical contact that culminated in the crotch-grabbing allegation, the most serious assault and the main focus of the prosecution.
[4] The appellant testified and denied ever touching the complainant inappropriately. He stated that on the day of the alleged crotch-grabbing incident, his hand may have made contact somewhere on the complainant’s body as she squeezed by a stool on which he was sitting in a narrow passageway, and that if he did make contact with complainant’s genital area, the contact was accidental.
[5] The trial judge admitted as similar fact evidence the evidence of TK regarding the appellant’s conviction for sexual assault upon her some eleven years earlier and the circumstances of that assault. The Crown tendered this evidence as relevant to the credibility of the complainant, the issue of consent and to rebut the defence of accidental touching.
[6] Unfortunately, at the time of the trial in 2001, the trial judge did not have the benefit of the Supreme Court of Canada’s decision in R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481. While Handy had been decided by the time the case reached the Superior Court on the summary conviction appeal in 2003, R .v. Blake (2003), 2003 13682 (ON CA), 181 C.C.C. (3d) 169 (Ont. C.A.), affirmed (2004), 2004 SCC 69, 188 C.C.C. (3d) 428 (S.C.C.) had not yet been decided by this court.
[7] The trial judge’s decision to admit similar fact evidence is to be accorded deference on appeal. However, I am satisfied that when considered on the basis of the approach mandated by Handy and Blake, the evidence of TK was clearly inadmissible.
[8] In the case at bar, both the mens rea and the actus reus of the offence were at issue as it was disputed whether any touching that occurred was in the crotch area. I agree with the appellant that the similarities between the complainant’s allegation of sexual assault and TK’s evidence were, at best, generic. Both involved young women, both involved inappropriate touching leading to touching in the genital area and, on both occasions, the appellant is said to have apologized afterwards.
[9] The observations of Simmons J.A. in Blake at paras 61 to 63 are particularly pertinent to the case at bar:
…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.
Broadly stated, the similarities identified by the trial judge can be summarized as follows:
• the appellant had sexually touched children aged 10 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.
- 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.
[10] When one compares the circumstances of the assault on TK to the assault alleged against the complainant, one finds nothing to add to the generic similarities that bear striking resemblance to those identified in Blake. In my view, just as in Blake at para 69: “apart from the generic similarities, there are no distinctive unifying features of the discreditable conduct 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.” As did the court in Blake at para 71, I “conclude that the probative value of proposed discreditable evidence failed to outweigh the risk of prejudice it created and therefore, that it was not admissible.”
[11] I am unable to agree with the submission of the respondent that the conviction can survive once it is concluded that the similar fact evidence was wrongly admitted. The trial judge admitted the evidence as relevant to credibility, consent and accident. At the conclusion of her lengthy reasons for judgment when considering whether the crown had proved its case beyond a reasonable doubt, the trial judge stated: “And I do rely on the evidence of [TK] to support the finding that I make in this case”. I do not agree with the respondent’s submission that the trial judge’s reasons can be fairly read as indicating that she only used the similar fact evidence to negate the defence of accidental touching with respect to the crotch-grabbing incident and that the conviction should be sustained on the basis of the prior incidents of less invasive touching.
[12] Accordingly, I would grant leave to appeal, allow the appeal, set aside the conviction and order a new trial.
RELEASED: “K.N.F.” February 8, 2006
“Robert J. Sharpe J.A.”
“I agree: K. Feldman J.A.”
“I agree: Paul Rouleau J.A.”