Her Majesty the Queen v. T.B.
[Indexed as: R. v. B. (T.)]
95 O.R. (3d) 21
Court of Appeal for Ontario,
Moldaver, Borins and Blair JJ.A.
February 25, 2009
Criminal law ‑‑ Evidence ‑‑ Similar fact evidence (past
discreditable conduct) ‑‑ Accused charged with multiple counts
of sexual offences against two young girls ‑‑ Trial judge
erring in rejecting Crown's application to use evidence on all
counts as similar fact evidence on each of other counts
‑‑ Trial judge mischaracterizing Crown's purpose in seeking to
admit similar fact evidence in stating that it was to attack
accused's credibility ‑‑ Trial judge erring in excluding
evidence on grounds of reasoning prejudice and moral prejudice
in judge alone and evidence in question was already before
court ‑‑ Evidence properly admissible as similar fact evidence
to refute coincidence and provide confirmation of each victim's
evidence ‑‑ Crown appeal from acquittal allowed and new trial
ordered.
The accused was charged with 11 sexual offences involving one
of his step‑nieces and three involving a second step‑niece. The
trial was before a judge alone. The trial judge rejected the
Crown's application to use evidence on all counts as similar
fact evidence on each of the other counts. The accused was
acquitted on all counts. The Crown appealed the acquittal on
nine of those counts. [page22 ]
Held, the appeal should be allowed.
The trial judge erred in finding that the Crown sought
admission of the evidence to attack the credibility of the
accused. The predominant purpose was to show a pattern of
similar behaviour that confirmed each complainant's testimony.
The trial judge also erred in excluding the evidence on the
ground of prejudice to the accused. In a judge alone trial,
neither reasoning prejudice (improper weight being assigned to
the similar fact evidence or confusion from too many incidents)
nor moral prejudice (improper inferences from bad "personhood"
evidence) were significant risks. The trial judge had already
heard the evidence as part of the Crown's case. His knowledge
of evidence casting the accused in a poor light was not
eliminated by its exclusion as similar fact evidence. Had the
trial judge admitted the similar fact evidence, he would have
had the very thing that he felt was missing to support a
conviction on all counts ‑‑ corroboration. The evidence of the
accused's misconduct was so relevant and cogent that its
probative value in the search for truth outweighed any
potential for misuse.
Cases referred to
R. v. Handy (2002), 2002 SCC 56, 61 O.R. (3d) 414, [2002] 2 S.C.R. 908,
[2002] S.C.J. No. 57, 2002 SCC 56, 213 D.L.R. (4th) 385,
2002 SCC 56, 290 N.R. 1, J.E. 2002‑1226, 160 O.A.C. 201, 164 C.C.C. (3d)
481, 2002 SCC 56, 1 C.R. (6th) 203, 53 W.C.B. (2d) 286, consd
Other cases referred to
R. v. B. (R.) (2005), 2005 30693 (ON CA), 77 O.R. (3d) 171, [2005] O.J. No. 3575,
2005 30693 (ON CA), 202 O.A.C. 115, 66 W.C.B. (2d) 462 (C.A.); R. v. Cresswell,
[2009] O.J. No. 363, 2009 ONCA 95; R. v. MacCormack,
[2009] O.J. No. 302, 2009 ONCA 72, 245 O.A.C. 271; R. v.
T. (L.), 2005 792 (ON CA), [2005] O.J. No. 139, 196 O.A.C. 394, 63 W.C.B. (2d)
242 (C.A.); R. v. Thomas (2004), 2004 33987 (ON CA), 72 O.R. (3d) 401, [2004]
O.J. No. 4158, 2004 33987 (ON CA), 191 O.A.C. 144, 190 C.C.C. (3d) 31, 26 C.R.
(6th) 274, 2004 33987 (ON CA), 63 W.C.B. (2d) 404 (C.A.); R. v. W. (D.),
1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 122 N.R. 277,
1991 93 (SCC), J.E. 91‑603, 46 O.A.C. 352, 63 C.C.C. (3d) 397, 3 C.R. (4th)
302, 1991 93 (SCC), 12 W.C.B. (2d) 551; R. v. W. (L.), 2004 33349 (ON CA), [2004] O.J. No. 4163,
2004 33349 (ON CA), 191 O.A.C. 22, 63 W.C.B. (2d) 405 (C.A.)
Statutes referred to
Criminal Code, R.S.C. 1985, c. C‑46, s. 274
[as am.]
Authorities referred to
Rosenberg, J.A., "Similar Fact Evidence" in Bryant, Alan W.,
Marie Henein and Janet A. Leiper, eds. Special Lectures 2003:
The Law of Evidence (Toronto: Irwin Law, 2004)
APPEAL by Crown from the acquittal entered by McCartney J. of
the Superior Court of Justice dated April 10, 2007.
Christopher Webb, for appellant.
Francis J. Thatcher and Simon N. Owen, for respondent.
The judgment of the court was delivered by
BORINS J.A.: ‑‑
I
[1] The Crown appeals against the respondent's acquittal on
nine charges of sexual offences that allegedly occurred between
[page23 ]1981 and 1987. He was acquitted of two additional
charges, which the Crown does not appeal. The victims are two
sisters, R. and M., who are the respondent's step‑nieces. The
Crown submits that the trial judge committed two errors ‑‑ he
rejected the Crown's application to use evidence on all counts
as similar fact evidence on each of the other counts and he
held that there was no corroboration of the victims' evidence.
II
[2] It was alleged that the respondent had forced sexual
intercourse with R. on one occasion when she was 14 or 15 years
old. The respondent was acquitted of two additional offences
alleged to have been committed against R., which the Crown does
not appeal. These acquittals on counts ten and 11 came about as
a result of amendments to the Criminal Code, R.S.C. 1985, c. C‑
- It was also alleged that the appellant committed eight
sexual offences against M. when she was between 13 and 17 years
old. The eight charges arose out of four incidents, in each of
which M. was riding with the respondent in his truck when he
drove to a remote area and sexually assaulted her.
[3] The respondent testified and denied that he sexually
assaulted R. and M.
[4] The first incident involving M. gave rise to counts one
and two, and was alleged to have occurred when M. was between
the ages of 13 and 15 years old. M. testified that while she
was in the respondent's truck, he drove north on the highway
away from their reserve and turned onto a side road and parked.
The respondent kissed M., felt her breasts and rubbed himself
on her. M. was scared and did not know what to do; she got out
of the truck and lit a cigarette. The respondent got out and
threw her cigarette on the ground. He put M. up against the
truck and rubbed her breasts and vagina. She told him that she
did not "want to do anything". He then undid her jeans, put his
hand inside her underwear and rubbed the outside of her vagina.
She told him "not to do that", pushed him away and told him to
take her home.
[5] The second incident involving M. gave rise to counts
three and four, and was alleged to have occurred when M. was 15
or 16 years old. M. testified that she was riding in the
respondent's truck when he drove to a bush road outside their
reserve. The respondent kissed her and "[felt her] up". She
told him that it was not right and tried to get out of the
truck. He told her that if she did not "do anything with him",
she would have to walk home and that there were bears in the
area. M. was afraid to walk home. The respondent continued to
feel her breasts and [page24 ]vagina. He then removed one of
her shoes and one of her pant legs, and had vaginal intercourse
with her.
[6] The third incident involving M. gave rise to counts five
and six, and was alleged to have occurred during the same
summer in which the second incident was alleged to have
occurred. M. testified that she was in the respondent's truck
when he drove away from their reserve and stopped on a bush
road. The respondent told her that he wanted her to give him a
"blow‑job". M. refused. The respondent undid his pants,
pulled out his penis and tried to make her touch his penis. She
balled her hand in a fist. He rubbed her fist on his penis and
pubic hair. He opened her hand and rubbed it up and down on his
penis, and then pushed her head toward his penis. M. said "no",
kept her mouth closed, started to gag and then sat back up. She
told him that she did not "want to put that in [her] mouth". He
told her that she would have to do something, or else she would
have to walk home, after which he had vaginal intercourse with
her.
[7] The fourth incident involving M. gave rise to counts
seven and eight, and was alleged to have occurred when M. was
16 or 17 years old. M. testified that she was riding with the
respondent in his truck when he drove north of their reserve
and stopped on a side road. He said that he wanted her to give
him a "blow‑job"; she said that she did not want to, and his
response was "you gotta' do something . . . it's a long way
back". M. wanted to jump out of the truck, but she was too
scared of being in the bush. She told the respondent that she
was menstruating and that she did not want to do anything with
him. He pulled his penis out of his jeans, held her hand around
it and rubbed her hand up and down on his penis until he
ejaculated.
[8] The first incident involving R. gave rise to count nine
and was alleged to have occurred when R. was 14 or 15 years
old. She testified that she was walking down a trail towards
her home when the respondent called out to her from a shack and
invited her to listen to music on cassette tapes. She agreed
and sat down on a chair in the shack. The respondent grabbed
her from behind and put her onto the bed. She struggled and
tried to fight back, ripping his shirt. The respondent shoved
her down on the bed hard and hit her face or chin. He then
pulled off one of her pant legs, leaving the other hooked
around her ankle, and had vaginal intercourse with her.
[9] The second incident involving R. gave rise to count 11
and was alleged to have occurred when R. was between 14 and 18
years old. She testified that the respondent asked her to go
for a ride in his truck, drove to a logging road and stopped
the truck. [page25 ]He pulled his erect penis out of his pants,
"made it go in circles with no hands" and told her to look
at it.
[10] The third incident involving R. gave rise to count ten
and was alleged to have occurred when R. was between 14 and 18
years old. She testified that the respondent put his penis into
her anus without her consent while they were parked in his
truck in a secluded area on a logging road.
[11] M. testified that she continued to ride in the
respondent's truck because she sought acceptance from her step‑
father's family and because the sexual assaults did not
happen every time she rode in the respondent's truck. R.
testified that she continued to ride in the respondent's truck
because she wanted to be liked and accepted by her step‑
father's family and because she was "optimistic that maybe
this time it would be nice".
[12] The Crown invited the trial judge to apply the evidence
adduced on all counts, including counts ten and 11, in reaching
a conclusion on each individual count. In refusing to do so,
the trial judge stated, at paras. 2‑4:
When character evidence is called, which shows only that the
accused is the type of person to have committed a crime, this
is inadmissible. The rule that allows such evidence to be
admitted in certain circumstances, for other purposes, is
called [the] similar fact evidence rule and was set out in
the case of [R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908] in the Supreme
Court of Canada, at [para.] 55 as follows:
Similar fact evidence is thus presumptively inadmissible.
The onus is on the prosecution to satisfy the trial judge
on a balance of probabilities that in the context of the
particular case the probative value of the evidence in
relation to a particular issue outweighs its potential
prejudice and thereby justifies its reception.
Consequently, the first thing to determine in assessing
admissibility of similar fact evidence is the purpose for
which it is being admitted. As was set out in the Handy case,
at [paras.] 115 and 116:
The Crown says the issue generally is "the credibility of
the complainant" and more specifically "that the accused
has a strong disposition to do the very act alleged in the
charges against him", but this requires some refinement.
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 (Sopinka, Lederman and Bryant . . . at para.
11.26). 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 a general disposition ("bad
personhood").
Now I can only assume from the Crown's argument that its
purpose in wanting to admit the similar fact evidence is to
attack the credibility of the accused, who has flatly denied
any improper involvement with the complainants. Such [page26
]a lack of specificity is surely what Handy speaks out
against. In this case, credibility is not just one of the
issues, it is the issue. So for this reason alone, the
similar fact evidence proposed should not be admitted.
[13] The trial judge referred to the "formula" in Handy and
concluded, at paras. 6‑10:
Now regarding the evidence of [R.] being used in the counts
relating to [M.], the evidence relating to count nine is very
weak. It does not stand up in the face of the defence
evidence, as to the use of the building, where the alleged
rape was alleged to have taken place and as to the activity
that was going on there at the time of [G.B.]'s funeral. This
then weakens the evidence of the other similar evidence
related by [R.], i.e., anal intercourse and gross indecency.
Furthermore, the alleged acts take place over a lengthy
period of time and were not similar in detail to the
allegations relating to [M.]
Now regarding [M.]'s evidence being used as similar fact
evidence on count nine, which relates to [R.], this also has
a very weak probative value. [M.] is quite clear in all of
her evidence that all of the sexual assaults took place in
the accused's red G.M.C. truck. The evidence however, is
quite clear that the accused did not own nor drive a red
G.M.C. truck until February of 1985, well after the times
alleged in counts one and two.
So again, this not only leaves count one and two in doubt,
but weakens the allegations of [M.] with respect to the
similar fact evidence asked to be admitted. Further, the
events are not proximate in time, spanning a seven‑year
period and were not similar in detail to the acts alleged by
[R.]
Finally, for the same reasons as set out above, the probative
value of [M.]'s allegations are sufficiently weak as to be
inadmissible as similar fact evidence to support each other.
When one compares the probative value of the evidence, set
out above, to the possible prejudice to the accused, in other
words, that prejudice being that the accused runs the risk of
being convicted because of his bad character, rather than
because of proof that he committed the offences, the
application to admit similar fact evidence by the Crown must
fail.
[14] The trial judge reviewed the evidence of the
complainants with respect to the commission of the offences. R.
testified that she was sexually assaulted on a bed in a shack
behind her grandfather's house that was commonly referred to by
means of a distinctive name. The respondent testified that
there was no furniture in that particular shack. M.'s evidence
was that she was sexually assaulted in the respondent's red
truck. The respondent testified that he did not own a red truck
during the period when the first incident was alleged to have
occurred. The trial judge then made reference to the three‑part
rule in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No.
26 and applied it in respect of the charge involving R., at
para. 15:
Applying this rule and considering the evidence presented by
the defence, I have no reason not to believe the accused and
so I find him not guilty on this count. [page27 ]
[15] After reviewing the evidence concerning counts five to
eight, alleging sexual assaults to M., the trial judge stated,
at paras. 23 and 24:
Now these counts arose out of events around three incidents,
each allegedly similar in nature, in which the complainant,
[M.], says that she got into the accused's red truck and
then he drove to a bush road near [their community] where she
was assaulted. The accused totally denies these allegations.
In a situation such as this, where there is a straight
accusation on one side and a denial on the other, and no
evidence to support either side and even if one were inclined
to disbelieve the accused, on the basis of the Crown and
W.D., he would have to be acquitted, since proof beyond a
reasonable doubt requires more than this to convict.
(Emphasis added)
[16] Next, the trial judge considered counts one and two,
alleging the sexual assault of M., in paras. 16 to 19. Like the
other assaults to M., she testified that they occurred when the
respondent took her for a ride in his red truck, drove to a
remote area and sexually assaulted her. The respondent
testified that he owned a blue truck at this time. The trial
judge concluded, at para. 19:
So once again, based on the evidence of the accused,
supported by the evidence noted above and applying the rule
in the Crown and W.D., I find the Crown has not proved guilt
beyond a reasonable doubt and the accused must be acquitted
on counts one and two.
III
[17] The Crown relies on three grounds of appeal, only two of
which need be considered. The Crown argues that the trial judge
erred:
(1) in finding that proof beyond a reasonable doubt of sexual
offences requires corroboration of the complainant's
evidence; and
(2) in dismissing the Crown's application to permit evidence
regarding each count to be used as similar fact evidence
regarding all other counts. In particular, the Crown
submitted:
(a) in finding that the Crown sought admission of the
evidence to "attack the credibility of the accused" and
that "for this reason alone" the application should be
dismissed, the trial judge misapprehended both the
Crown's position and the legitimate use that could be
made of the evidence; and
(b) the trial judge erred in finding that the application
"must fail" because the probative value of the
similar [page28 ]fact evidence was outweighed by the
risk of moral prejudice in this non‑jury trial.
IV
[18] The Crown submits that in requiring corroboration of M.'
s testimony before he could convict, the trial judge erred
in law. The impugned passage in the trial judge's reasons is
set out in para. 15. It would appear that in requiring
"evidence to support" the complainant's testimony, the trial
judge concluded that he was legally required to acquit the
respondent because of lack of corroboration of the
complainant's evidence. Section 274 of the Criminal Code, which
came into force more than 20 years ago, provides that where an
accused is charged with sexual assault, no corroboration of the
complainant's testimony is required for a conviction. Section
274 has retrospective application to counts three, four and
seven.
[19] It is not entirely clear what the trial judge meant. If
what he meant was that there can never be a conviction absent
confirmation of the complainant's testimony in a case of sexual
assault where the only witnesses are the complainant and the
accused, he was wrong. Given my view of the other ground of
appeal, it is unnecessary to decide this ground.
V
[20] I will now deal with the second ground of appeal
involving the trial judge's rejection of the similar fact
evidence.
[21] The trial judge said that the Crown's purpose in seeking
to admit the similar fact evidence was to attack the
respondent's credibility. This was a misapprehension of the
Crown's position. In argument before the trial judge, the Crown
referred to the need to establish "a specific line of
permissible reasoning", as well as to this court's decision in
R. v. T. (L.), 2005 792 (ON CA), [2005] O.J. No. 139, 196 O.A.C. 394 (C.A.),
concerning the use of similar fact evidence in cases of sexual
offences against young people. The Crown's position, therefore,
was that the central issue on which the similar fact evidence
bore was the actus reus of the offences and whether the
respondent's blanket denial of the commission of all 11
offences on which he was tried was credible. The Crown
submitted at trial, and in this court, that the evidence ought
to have been admitted because the compelling degree of
similarity among the acts overcame the objective improbability
of coincidence. In this respect, the Crown urged that the
probative value of the evidence outweighed any prejudicial
effect. [page29 ]
[22] In my view, the trial judge misapprehended the Crown's
purpose in seeking to admit the similar fact evidence. Its
purpose was not merely to attack the respondent's credibility.
The predominant purpose was to show a pattern of similar
behaviour that confirmed each complainant's testimony. Put
simply, in the absence of collusion or some other form of
tainting, none of which was found in this case, given the
similarities in the evidence of R. and M. regarding the
respondent's conduct, it was unlikely that the conduct was the
result of coincidence.
[23] The Crown's position regarding the permissible use of
similar fact evidence to support a complainant's allegations is
consistent with decisions of this court. For example, in R. v.
Thomas (2004), 2004 33987 (ON CA), 72 O.R. (3d) 401, [2004] O.J. No. 4158 (C.A.),
Rosenberg J.A., at para. 43, observed that the trial judge "did
identify the permitted use of the evidence. He suggested that
the jury might find that there was a pattern of similar
behaviour that confirmed each complainant's testimony that the
offences took place. This was sufficient." At para. 54,
Rosenberg J.A. provided the following guidance "on the proper
use of the evidence":
If the jury finds this distinctive pattern, they might find
it defies coincidence that students were lying or mistaken
about what happened to them absent collusion or some other
explanation such as tainting through the police
investigation. The evidence accepted by the jury might
therefore assist the jury in determining whether any of the
complainants was credible and whether the acts they alleged
really occurred . . . . They can use the evidence of one or
more complainants in assessing the truthfulness of the other
complainants only if there is this distinctive pattern of
conduct that suggests that they were describing similar
events.
(Footnotes omitted)
[24] At paras. 10‑11 of R. v. B. (R.) (2005), 77 O.R. (3d)
171, 2005 30693 (ON CA), [2005] O.J. No. 3575 (C.A.), Laskin J.A. wrote:
In Handy, . . . Binnie J. cautioned that "[I]dentification of
credibility as the 'issue in question' may, unless
circumscribed, risk the admission of evidence of nothing more
than general disposition ('bad personhood')."
I do not think that was a risk here. The trial judge's ruling
showed that he admitted the similar fact evidence not to show
a general propensity to engage in sexual misconduct but to
show the appellant's specific propensity to engage in sexual
misconduct with boys in his care who came to him in a
vulnerable condition.
The question to be decided was whether the sexual assaults
occurred. The similar fact evidence was probative of the
actus reus of the offences, which in turn depended on the
credibility of the complainants' evidence about the assaults,
See R. v. T. (C.) (2005), 2005 371 (ON CA), 74 O.R. (3d) 100, . . . at para.
- [page30 ]
[25] Therefore, in finding that the purpose of the Crown's
application to admit the similar fact evidence was "to attack
the credibility of the accused" and that "for this reason
alone" the application should be dismissed, the trial judge
misapprehended both the Crown's purpose and the legitimate use
that could be made of the evidence. It also led him to dismiss
the application on the erroneous basis that if admitted the
evidence would impermissibly "attack the credibility of the
accused".
VI
[26] As explained in Handy, prejudice in the similar fact
context involves two distinct concepts ‑‑ "reasoning prejudice"
and "moral prejudice". One of the reasons the trial judge
excluded the evidence was on the ground of moral prejudice.
Reasoning prejudice includes the danger that the jury might be
confused by the multiplicity of incidents and/or might put more
weight than is logically justified on the similar fact
evidence, and also raises concerns regarding undue consumption
of time involved in receiving evidence of allegations unrelated
to the charges against the accused. Moral prejudice concerns
the risk that the evidence might lead to a conviction on
nothing more than "bad personhood". In other words, the trier
of fact may find the accused guilty not because of the
probative value of the evidence regarding the issue at trial,
but rather because the evidence establishes that the accused is
a bad person deserving of punishment. Reasoning prejudice and
moral prejudice raise legitimate concerns in a jury trial, but
less so in a non‑jury trial, as this was. Nevertheless, the
trial judge was concerned about moral prejudice.
[27] As the proposed similar fact evidence in this case was
related to all the counts in the indictment and the evidence
was already before the court, and because this was a non‑jury
trial, reasoning prejudice was not a real issue. Unlike cases
such as Handy, this was not a case where the proposed similar
fact evidence was extrinsic to the charges before the court and
required extra witnesses to present it. The only additional
time needed as a result of the similar fact evidence was the
time required to argue the motion to admit it. As trial judges
are presumed to know the law and the proper and improper uses
of evidence, it seems counterintuitive that similar fact
evidence could be excluded in a non‑jury trial based on the
trial judge's determination that the evidence would confuse him
or induce him to put more weight on it than is logically
justified. [page31 ]
[28] In his lecture entitled "Similar Fact Evidence" in
Special Lectures 2003: The Law of Evidence (Toronto: Irwin Law,
2004), Rosenberg J.A. wrote, at p. 414:
The similar fact rule is very much driven by the jury system
and the danger that laypersons will give undue weight to
frail but highly prejudicial evidence.
A similar view was expressed by this court in R. v. W. (L.),
2004 33349 (ON CA), [2004] O.J. No. 4163, 191 O.A.C. 22 (C.A.), at para. 9:
It is important to keep in mind that the risk of prejudice
was much reduced because of the fact that this was a trial by
judge alone.
[29] R. v. MacCormack, [2009] O.J. No. 302, 2009 ONCA 72,
released January 27, 2009, like this case, concerned a
defendant on trial on multiple counts. At para. 56, Watt J.A.
said:
The test for the admissibility of evidence of similar acts
offered to prove identity is the same whether the alleged
similar acts are extrinsic to the counts in the indictment,
or contained in other counts of the same indictment: Arp at
para. 51. The same test notwithstanding, some of the factors
relevant to an assessment of prejudice may have an attenuated
influence in cases in which the similar acts are restricted
to other counts in a multi‑count indictment. It may be all
the more so where the case is tried by judge sitting without
a jury.
[30] Watt J.A. added, at paras. 68 and 69:
This case involves the invocation of similar act principles
across counts in a multi‑count indictment. The evidence
relating to each count is relevant to and admissible in proof
of the allegation contained in that count. Each incident is
of equivalent gravity and of minimal inflammatory potential.
This is not a case, in other words, in which conduct
extrinsic to the crimes alleged in the indictment is enlisted
as evidence of similar acts to prove what is alleged, and
lugs with it inflammatory claims of greater gravity or moral
depravity.
In large measure, the practical realities of a trial by
judge sitting alone in a case in which the allegedly similar
acts do not extend beyond the counts of a multi‑count
indictment reduce significantly, if not to the vanishing
point, the virus of reasoning prejudice. The judge is less
likely than a jury to be distracted by a focus on similar
acts. No additional time is required to adduce the evidence
of similar acts because they are co‑extensive with the
evidence that is relevant, material and properly admissible
on the individual counts. The only additional time required
is that needed for the argument on admissibility at the end
of the trial.
[31] In R. v. Cresswell, [2009] O.J. No. 363, 2009 ONCA 95, a
decision of this court released January 30, 2009, the appellant
was tried on six counts of sexual assault in a non‑jury trial.
The court rejected the appellant's submissions that the trial
judge erred by ruling that the evidence on each count was
admissible as similar fact evidence on all the other counts.
Relevant to this appeal is what the court said at paras. 9 and
10:
We note as well that Handy states that admissibility is
conditioned by the issue to which the evidence is directed.
Here, the evidence went not to identity, [page32 ]where
distinctive features amounting to a "signature" may be
required, but rather to the actus reus, where less cogent
similarities may render the evidence admissible.
Finally, we observe that this was a judge alone trial on a
multi‑count indictment. There was no severance application
and it was inevitable that the judge deciding the case would
hear all of the evidence. While this, of course, does not by
itself render the evidence admissible across all counts, it
significantly reduces the risk of prejudice. Moreover, in his
reasons, the trial judge properly identified the permitted
use of similar fact evidence and cautioned himself against
prohibited lines of reasoning.
[32] Nevertheless, the trial judge in the case at bar
dismissed the application to use the evidence on all counts as
similar fact evidence on the others, in part on the basis that
its moral prejudice would outweigh its probative value. He
found:
When one compares the probative value of the evidence, set
out above, to the possible prejudice to the accused, in other
words, that prejudice being that the accused runs the risk of
being convicted because of his bad character, rather than
because of proof that he committed the offences, the
application to admit similar fact evidence by the Crown must
fail.
(Emphasis added)
This ruling reflected three misapprehensions.
[33] First, this was a non‑jury trial, in which the danger
that an accused would be convicted solely on the basis of his
general bad behaviour was not a significant concern. Moral
prejudice is not a significant risk in a judge‑alone trial.
Second, dismissal of the application to introduce similar fact
evidence did nothing to address the probability of moral
prejudice. The trial judge had already heard the evidence as
part of the Crown's case. Thus, the trial judge's knowledge of
evidence casting the respondent in a poor light was not
eliminated by its exclusion as similar fact evidence. The only
issue was whether the already admitted evidence could be used
for another purpose. Third, to the extent that there is a risk
of moral prejudice in a judge‑alone trial is possible, the
trial judge failed to appreciate, with respect to counts one to
nine, that prejudice was much reduced as none of the underlying
incidents were more reprehensible than the others. The
allegations regarding each count that applied to M. were
virtually the same and were quite similar to the incidents
related by R., especially those that took place in the
respondent's truck.
[34] In summary, in this case of a multiple‑count indictment,
the issue for the trial judge was whether the evidence
regarding other counts had sufficient probative value to
support a legitimate chain of reasoning furnishing evidence of
any individual count. However, the trial judge never reached
this stage in his analysis. This was because he misapprehended
both the Crown's position and the law regarding the legitimate
use of similar fact [page33 ]evidence in a multiple‑count
indictment tried by a judge without a jury. These errors were
compounded by the trial judge's misapprehension that the moral
prejudice of the evidence was too great to admit the evidence.
Moreover, had the trial judge admitted the similar fact
evidence, the trial judge would have had the very thing that he
felt was missing to support a conviction on all counts
‑‑ corroboration.
[35] In Handy [R. v. Handy (2002), 2002 SCC 56, 61 O.R. (3d) 414, [2002] 2
S.C.R. 908, 2002 SCC 56, [2002] S.C.J. No. 57], the Supreme Court of Canada
developed a principled approach to the admissibility of similar
fact evidence. In that case, the Crown tendered as similar fact
evidence extrinsic evidence of alleged violent sexual behaviour
between the accused and his ex‑wife. Although the trial judge
admitted the evidence, this ruling was set aside by the Supreme
Court of Canada.
[36] Unlike Handy, in this case there was no extrinsic
evidence tendered as similar fact evidence. The proposed
similar fact evidence was already before the court as evidence
on the counts in the indictment. There was no likelihood that
the evidence would take the defence by surprise. Unlike Handy,
there was no extrinsic evidence that would capture the
attention of the trier of fact to an unwarranted degree. In
this non‑jury trial, its potential for prejudice, distraction
and time consumption was largely absent and its prejudicial
effect, if any, did not outweigh its probative value. There was
no danger of judging the respondent's actions on the basis of
character.
[37] In my view, the evidence of the respondent's misconduct
is so relevant and cogent that its probative value in the
search for truth outweighs any potential for misuse. The
proposed evidence had common characteristics with acts charged
in the indictment and, therefore, was admissible as supportive
of the evidence of the complainants. It was highly probative in
that the similarities make it unlikely that the complainants
were lying or mistaken about what happened to them. As Binnie
J. said in Handy, at para. 42:
In any case, the strength of the similar fact evidence must
be such as to outweigh "reasoning prejudice" and "moral
prejudice". The inferences sought to be drawn must accord
with common sense, intuitive notions of probability and the
unlikelihood of coincidence. Although an element of "moral
prejudice" may be introduced, it must be concluded by the
trial judge on a balance of probabilities that the probative
value of the sound inferences exceeds any prejudice likely to
be created.
(Emphasis in original)
[38] Thus, the force of similar circumstances in this case
refutes coincidence or other innocent explanation. This
evidence [page34 ]is sufficiently compelling to safely draw the
inference of many sexual assaults on the facts charged. In
short, toward his step‑nieces the respondent was a sexual
predator. Moreover, as the complainants and the respondent
lived in a small northern Ontario community, the evidence
represents the observed pattern of propensity operating in a
closely defined and circumscribed context. I have no doubt that
its probative value pointing to the respondent as the
perpetrator of the sexual assaults outweighs its prejudicial
effect. As Binnie J. emphasized in Handy, the primary test for
the admission of similar fact evidence is whether its probative
value outweighs its prejudicial effect.
VII
[39] For the foregoing reasons, I would allow the appeal, set
aside the acquittal of the respondent and order that there be a
new trial.
Appeal allowed.