WARNING

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

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.W., 2013 ONCA 89

DATE: 20130214

DOCKET: C54469

Weiler, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

J.W.

Respondent

Jamie C. Klukach and Avene Derwa, for the appellant

Alan B. Richter, for the respondent

Heard: January 10, 2013

On appeal from the acquittals entered on September 20, 2011 by Justice David Salmers of the Superior Court of Justice, sitting without a jury.

Weiler J.A.:

A. overview

[1] The Crown appeals the respondent’s acquittal on one count of sexual assault and one count of indecent assault on a question of law alone. The question of law is whether the trial judge erred in excluding the similar fact evidence tendered by the Crown. The admissibility of evidence is a pure question of law: R. v. Fanjoy, 1985 CanLII 53 (SCC), [1985] 2 S.C.R. 233, at p. 238. For the reasons that follow, I would hold that, on this record, the trial judge did err in excluding the similar fact evidence, and I would order a new trial.

B. facts

(1) The allegations of the complainant

[2] In 2011, the respondent was charged with assault, indecent assault, and sexual assault. The alleged offences occurred between 1982 and 1987. The victim, J.C., was between seven and thirteen years old. The respondent was J.C.’s mother’s boyfriend and, eventually, her husband. He shared a home with J.C. for five or six years, until the relationship ended.

[3] During this period, J.C. alleges that the respondent physically and sexually abused him hundreds of times. He says the respondent was a stocky, intimidating man who would become suddenly violent and aggressive, especially when he drank alcohol. J.C. also describes the respondent as a cruel disciplinarian. When the respondent was upset with J.C. or when the respondent did not get his way, he would slap J.C. on the head, choke him, or hit him with a belt. He would also force J.C. to sit up with his back completely straight on the edge of the bed, for hours on end.

[4] The alleged abuse was also sexual in nature. It began with what J.C. referred to as “penis inspections”. The respondent would ask J.C. to show him J.C.’s penis. The respondent would often touch J.C.’s penis on these occasions. The respondent told J.C. that he would be able to tell from looking at and touching his penis whether J.C. was sexually active. These “inspections” took place on a regular basis.

[5] The alleged abuse quickly escalated in nature. The respondent would tell J.C. to go into his room alone and look at pornographic magazines. Then the respondent would ask for “feedback”. He asked J.C. to describe how looking at the magazines made him feel. He would also play J.C. pornographic films. Again, he would ask how the pornography made J.C. feel, whether the images aroused him, and what J.C. was thinking about as he watched.

[6] Eventually, the respondent allegedly started coming into J.C.’s bedroom at night. Sometimes he would give J.C. pornographic magazines. He would tell J.C. to concentrate on the women in the magazines, and then the respondent would touch J.C.’s penis and perform oral sex on him. During these encounters, the respondent wore nothing but a short, black, silk robe. While performing oral sex on J.C., the respondent would masturbate. J.C. testified that this occurred “[h]undreds of times.”

[7] The respondent also asked J.C. to touch him. On one occasion, the respondent asked J.C. to come into the respondent’s bedroom. The respondent lay naked on the bed. He asked J.C. to put Vaseline on the respondent’s penis and to masturbate him. J.C. tried to comply but felt ill. On another occasion, the respondent tried to induce J.C. to perform anal sex on him. He referred to it as a “special privilege.” Again, J.C. tried to comply but could not.

[8] When J.C. was unable or unwilling to perform these acts, he says he would receive a “beating.” J.C. says he was physically assaulted “a hundred” times as a result of resisting sexual activity with the respondent.

[9] J.C. testified that the abuse was generally precipitated by the respondent’s use of drugs – hash, marijuana, and occasionally cocaine. The assaults usually occurred in J.C.’s bedroom, but occasionally they occurred on the living room couch or in the respondent’s bedroom. J.C. testified that, when the abuse was occurring, his mother was watching T.V., asleep, or not at home.

[10] J.C. says the respondent ensured that J.C. would not disclose the abuse by threatening his mother and his grandmother with physical harm. He also told J.C. that he had secretly videotaped their activities, and that he would show the videos to J.C.’s friends.

[11] The last act of alleged sexual abuse occurred when J.C. was a young teenager. At that point, J.C. had serious behavioural problems and had moved to a residential treatment centre for troubled youth. The respondent and J.C.’s mother attended the centre for a family meeting. The respondent followed J.C. into the bathroom. While J.C. was urinating, the respondent asked “how everything was…going down there”, referring to J.C.’s genitals. J.C. testified that he “stood his ground” and told the respondent he would not “do this stuff anymore.”

[12] The relationship between the respondent and J.C.’s mother ended shortly after J.C. moved away.

(2) The similar fact evidence

[13] In 1992, the respondent was charged with and convicted of another sexual assault against a child. The victim was C.K., the child of another woman the respondent lived with shortly after his relationship with J.C.’s mother ended. The respondent assumed a parental role towards C.K. and her two sisters during this time. C.K. was approximately six years old when the offences occurred, and approximately eight years old when she testified against the respondent at trial.

[14] During the respondent’s trial for his alleged abuse of J.C., the Crown applied to have C.K.’s testimony about her own experience admitted as similar fact evidence. C.K., who is now 27 years old, testified at the voir dire.

[15] The respondent’s abuse of C.K. began when he came into her bedroom to tuck her in at night. He would wear a short, loosely tied black robe and would usually be naked underneath. His genitals would be exposed. When he said good night, he would “present” his penis to C.K. by standing directly in front of her face. He would coax C.K. to touch his penis. C.K. testified that this was an “ongoing” occurrence throughout the time the respondent lived in her house.

[16] The respondent also touched C.K. He brought baby oil into her room at night, applied it to his fingers, and touched her vagina. She described this as a “common occurrence.”

[17] C.K. remembered one occasion when they were playing hide and seek in a dark room, and the respondent guided her hand to his penis. On other occasions, he would call her into his bedroom and ask her to masturbate him. The respondent would often ejaculate. Once, the respondent asked C.K. to lick his penis “like a lollipop.” She said she didn’t want to, but did “kiss it briefly.”

[18] The respondent also exposed C.K. to pornographic magazines and videos. C.K. remembered that conversations occurred while the respondent showed her the magazines, but she could not remember what was said. On several occasions, the respondent put a pornographic video on and told C.K. to turn her back to the T.V. She said the idea was that “he didn’t want to catch me watching it and he would leave the room and wait until he could catch me turning around.”

[19] C.K. said she resisted the abuse at times and the respondent would become frustrated. However, she did not report him becoming violent or aggressive with her on those occasions. She also did not recall being threatened about disclosing the abuse, though she knew she “would get in big trouble” if she told anyone about their “little secret.” C.K. did not recall being aware of the respondent using drugs or alcohol.

(3) The evidence of collusion

[20] J.C. first disclosed his allegations against the defendant in or around 1993, to a probation officer who was preparing a pre-sentence report on J.C. for charges against him on an unrelated matter. He testified that he did not go into detail with the officer; he simply referred to anger he had at the respondent for abuse that happened during his childhood. According to J.C., the probation officer disclosed to him at that time that the respondent had been convicted of sexual offences involving one or more young girls.

[21] Around the same time, both J.C.’s uncle and his mother learned of the charges involving C.K. There is evidence that J.C.’s uncle heard about the allegations from a number of people, including a family friend who was close to C.K.’s mother. J.C.’s mother testified that she heard about the allegations from her brother, from rumours going around the neighbourhood, and from another family friend whose husband was a witness in the respondent’s trial on the charges. J.C.’s mother testified that she had discussed the respondent’s conviction with J.C., and that she had told J.C. the respondent was in prison for hurting young girls.

[22] There is no evidence that J.C.’s uncle or mother knew anything more about the allegations than that the respondent had gone to prison for molesting the daughter or daughters of his girlfriend.

[23] J.C. testified that he did not know anyone by the name of C.K. He said he had never met or spoke to anyone who lived with the respondent after the respondent and his mother broke up. There is no evidence of contact between J.C. and C.K., or J.C. and C.K.’s mother. J.C. testified that he was told by his probation officer, his mother, and his uncle that the respondent was in prison for sexually assaulting young girls, but that he did not know the details. All he knew was that the respondent had “interfered with” or “inappropriately touched” the girls, that there was “penetration” involved, and that the respondent had really done “damage” to the girls, in that the abuse had “really affected their lives.”

C. The trial judge’s decision

(1) The trial judge’s ruling on the similar fact evidence

[24] The trial judge dismissed the Crown’s similar fact evidence application and excluded C.K.’s testimony from the trial proper.

[25] He first considered the defence’s allegations of tainting or collusion. The defence argued that J.C.’s testimony was influenced by information he received from third parties about C.K.’s abuse. The trial judge accepted that there was an air of reality to the defence’s allegations, and that the Crown was therefore obliged to establish, on a balance of probabilities, that no collusion had occurred. However, he went on to hold that the evidence before him demonstrated nothing more than an opportunity for collusion, and not collusion itself. The potential tainting did not, therefore, preclude the admissibility of the evidence.

[26] The trial judge then considered the balance of the Crown’s application to admit C.K.’s testimonial evidence against the respondent. He observed that C.K.’s evidence was similar fact evidence, and that similar fact evidence is presumptively inadmissible. The onus was thus on the Crown to demonstrate on a balance of probabilities that the probative value of the evidence outweighed its potentially prejudicial effect.

[27] The trial judge accepted that the proposed similar fact evidence was relevant to two important issues in the case: whether the actus reus of the offence occurred, and J.C.’s credibility. The trial judge then went on to assess the degree to which the similar fact evidence was probative of these two issues.

[28] Enhancing the probative value of the evidence was the fact that the alleged acts began within two to three years of each other, and that both J.C. and C.K. were allegedly abused multiple times. Diminishing the probative value of the evidence was the fact that there were no allegations against the respondent by other children besides C.K. and J.C.

[29] The trial judge pointed out two additional factors that lessened the probative value of C.K.’s testimony, both of which are important for the purposes of this appeal. First, he found that the dissimilarities between the two sets of alleged acts were greater than the similarities between them. His analysis on this point is set out here:

There are several similarities between the [J.C.] allegations and the [C.K.] assaults. However, there are also many dissimilarities. During argument yesterday, both Crown and defence counsel very ably set out the similarities and dissimilarities. I do not feel that it is necessary to again refer to each and every similarity and dissimilarity. However, in conducting the analysis for this application, I have carefully considered the similarities and dissimilarities in every way, including but not restricted to their respective numbers and the importance of each similarity and dissimilarity to the issues for which admission was proposed by the Crown. Having done so, I am satisfied and find that there are at least as many dissimilarities as there are similarities.

Further, I find that collectively, the dissimilarities differentiate the [C.K.] assaults from the [J.C.] allegations more than the similarities unify the [C.K.] assaults and the [J.C.] allegations. Accordingly, I am satisfied that the examination of the circumstances of the [C.K.] assaults and the [J.C.] allegations, including the similarities and dissimilarities, lessens the probative value of the proposed similar fact evidence.

[30] Second, the trial judge raised the possibility of collusion as another factor that diminished the probative value of C.K.’s evidence. Again, the relevant parts of his analysis are set out here:

In this case, I have not found on a balance of probabilities that there was collusion or tainting of [J.C.’s] testimony. However, I have found that the [C.K.]/[J.C.] convictions created opportunities for and the possibility of tainting of [J.C.’s] evidence by his discussions with other people or discussions heard by [J.C.]. These opportunities or possibilities of tainting reduce the strength of the proposed similar fact evidence for the purposes for which the Crown seeks to adduce the similar fact evidence.

I find that the proposed similar fact evidence has some probative value for the purpose of proving that [the respondent] assaulted [J.C.] as [J.C.] testified. However, that probative value is lessened by the possibility of tainting and by the many dissimilarities between the [C.K.] assaults and the [J.C.] allegations.

The proposed similar fact evidence also has some probative value for the purpose of supporting [J.C.’s] credibility. However…similar fact evidence should be used to support the credibility of a witness where “there is an improbability of coincidence given the respective features of the respective allegations.” Considering the possibility of tainting and the many dissimilarities between the [C.K.] assaults and the [J.C.] allegations, I cannot say that coincidence is improbable. Accordingly, probative value for the purpose of supporting [J.C.’s] credibility is significantly lessened. [Internal citation omitted.]

[31] The trial judge then considered the potentially prejudicial effect of admitting the evidence against the respondent. He acknowledged that the risk of both moral and reasoning prejudice was lessened by the fact that the case had proceeded as a judge alone trial; however, he went on to observe that “in a judge alone trial, the bigger concern is reasoning prejudice”.

[32] The trial judge then held that the elapsed time of nearly twenty years between the two trials prevented the respondent from making full answer and defence. He felt the respondent would be unable to fully attack the probative value of the similar fact evidence, because of C.K.’s diminished memory of the events and the exacerbating fact that C.K. was only six years old at the time of the assaults. As a result, the trial judge held that, as a trier of fact, he would experience significant reasoning prejudice if the evidence was admitted.

[33] In the light of the diminished probative value of C.K.’s testimony and the heightened possibility of reasoning prejudice, the trial judge dismissed the application. C.K.’s testimony was therefore not before the court in the trial proper.

(2) The result at trial

[34] The trial judge convicted the respondent on the simple assault charge. He was satisfied that the incident in question, witnessed by J.C.’s mother, had indeed occurred as J.C. described.

[35] However, the trial judge acquitted the respondent on the sexual assault and indecent assault charges. He was particularly concerned with the credibility and reliability of J.C.’s testimony – the only evidence before the court that the respondent committed the sexual offences. There were inconsistencies between J.C.’s testimony and the testimony of his mother, whom the trial judge found to be a very credible and “matter-of-fact witness.” He held that some of these inconsistencies were directly relevant to whether the respondent had the opportunity to commit the alleged offences. In the result, the trial judge was left with a reasonable doubt as to the respondent’s guilt of the sexual and indecent assaults.

D. the trial judge’s errors in his admissibility analysis

(1) The trial judge’s error in holding that the collusion allegation had an “air of reality”

[36] The test for admissibility of similar fact evidence where collusion is alleged is set out in R. v. Handy, 2002 SCC 56,[2002] 2 S.C.R. 908,at paras. 111-112. The trial judge is required to determine whether there is an “air of reality”, or evidential foundation, to the allegation of collusion.[^1] If the trial judge determines the allegation of collusion has an air of reality, the burden shifts to the Crown “to satisfy the trial judge, on a balance of probabilities, that the evidence of similar facts is not tainted with collusion”: R. v. Handy, at para. 112. If the Crown discharges this burden, the evidence is admitted. It is then up to the trier of fact to determine the ultimate worth of the similar fact evidence.

[37] Mere opportunity for contact is insufficient to give rise to an “air of reality” to the allegation of collusion: David M. Paciocco and Lee Stuesser, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011), at p. 63. As Binnie J. wrote, at para. 111 of R. v. Handy, “[t]he issue is concoction or collaboration, not contact”. Here, the evidence of collusion, discussed above, amounted to no more than an opportunity for indirect contact. In addition, there appears to have been no evidence of a motive to collude, as there was in R. v. Handy.

[38] The trial judge therefore erred when he held that the allegation of collusion had an air of reality. The burden of demonstrating that the similar fact evidence was not, in fact, tainted should never have been placed on the Crown. Further, the trial judge’s error was not harmless. It gave rise to further errors in his legal reasoning on the admissibility of the similar fact evidence, discussed below.

(2) The trial judge’s errors in legal reasoning respecting the admissibility of the similar fact evidence

[39] The respondent submits that the trial judge correctly applied the law respecting similar fact evidence, and that he was entitled to make the findings he did. The respondent argues that the trial judge’s determination is owed deference on appeal.

[40] I agree that, absent an error in principle, a trial judge’s determination that similar fact evidence ought not to be admitted because its probative value outweighs its prejudicial effect is entitled to substantial deference: R. v. Handy, at para. 153; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73; R. v. Martin, 2010 ONCA 527, at para. 6. However, for the reasons given below, the trial judge erred in principle – both in his assessment of the probative value of the evidence and in his assessment of its prejudicial effect. As a result of these errors in principle, his decision to exclude the proposed similar fact evidence is not entitled to deference.

(a) Flaws in the trial judge’s treatment of the probative value of the similar fact evidence

[41] To be admissible, similar fact evidence must be probative of a live issue in the trial. Similar fact evidence will generally be probative where a trier of fact is able to legitimately infer, on the basis of the respondent’s past sexual misconduct in closely comparable circumstances, that coincidence is objectively improbable. Thus, in this case, the trial judge correctly found that C.K.’s testimony at the voir dire was relevant to two live issues in this trial: whether J.C.’s account of the abuse was credible, and whether the actus reus of the offences charged had, in fact, occurred.

[42] Further, once a trial judge determines that similar fact evidence is affected by no more than a mere possibility or opportunity for collusion – as the trial judge did in this case – it becomes a matter of weight for the trier of fact: R. v. Handy, at para. 111. The appellant contends that the trial judge “engaged in a weighing exercise that was misplaced at the admissibility stage” by considering the potential for tainting or collusion in his probative value analysis.

[43] I must point out that, in exercising a gatekeeper function, there are times where the trial judge is entitled to take into account the credibility of the evidence. Where the question of admissibility and probative value are totally bound up with one another, the evidence may be too prejudicial to be admitted unless it is reasonably capable of belief: R. v. Handy, at para. 134. Furthermore, in a judge alone trial where the trial judge, as the trier of fact, must make the ultimate determination as to the weight to be given to the evidence that may have been influenced by the sharing of information, weighing the evidence at the admissibility stage may occasion no substantial wrong or miscarriage of justice in the end result. This is not one of those cases.

[44] I take the Crown’s submission to be more broadly that the trial judge erred in his analytical approach to determining the admissibility of the evidence and overall failed to adopt a contextual approach. I agree. There was “no air of reality” to the allegation of collusion, so no weighing of the possibility of collusion at the admissibility stage should have occurred. In addition, for the reasons set out below, the trial judge further erred in his analytical approach to both the probative value of the evidence and its prejudicial effect.

[45] First, the trial judge failed to appreciate that there was no evidence that J.C. knew any of the details of the sexual assaults on C.K., so his credibility with respect to the manner in which the assaults occurred could not have been affected. Insofar as C.K.’s evidence was concerned, there was no possibility her evidence at the respondent’s earlier trial was given in collusion with J.C. Nor was there any suggestion that the evidence C.K. gave in the voir dire on the similar fact evidence in the instant case was tainted.

[46] With respect to J.C.’s evidence, it is important to note that the potential sources of tainting – J.C.’s mother, uncle, and probation officer – knew only that the respondent had been convicted of a sexual offence involving the daughter or, as they mistakenly believed, two daughters of the respondent’s then girlfriend. There was no evidence that J.C. or any of the witnesses knew any of the details of that abuse.

[47] J.C. acknowledged that knowing the respondent had victimized others gave him “a bit of confidence” and “encouragement” to disclose his own abuse. However, the real issue in the similar fact evidence application was how the alleged sexual assaults occurred. There is no evidence that J.C.’s account of how the sexual assaults occurred could possibly have been “tainted”. Therefore, the trial judge’s erroneous conclusion that J.C.’s evidence of the details of the abuse was possibly tainted by his knowledge that the respondent had abused other young girls led him to significantly – and, in my opinion, improperly – discredit its probative value.

[48] Second, the trial judge took into account an irrelevant consideration in lessening the probative value of the similar fact evidence. He observed that, apart from the testimony of C.K., there was no evidence of the respondent abusing or assaulting any other children. He held that this factor lessened the probative value of the similar fact evidence.

[49] The admissibility of similar fact evidence is not a numbers exercise. The question was whether the respondent’s conduct with C.K. was indicative of a situation specific pattern of behaviour, making it more likely that he had engaged in the same conduct with J.C. In the context of this case, the fact that the Crown did not present more witnesses was irrelevant.

[50] Third, the trial judge ignored a relevant consideration in assessing the probative value of the evidence. In some cases, as in R. v. Handy, the evidence of similar acts is denied. That was not the case here. Although the respondent contested the admissibility of the similar fact evidence, he did not deny that he had committed the acts with C.K. for which he was convicted. The trial judge failed to consider that this fact enhanced the probative value of the evidence.

[51] Finally, the trial judge appears to have engaged in a mathematical calculation of the similarities and dissimilarities of the evidence, without regard to their qualitative force. In so doing, the trial judge ignored the caution of Binnie J. in R. v. Shearing, at para. 60:

The judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance. At microscopic levels of detail, dissimilarities can always be exaggerated and multiplied.

[52] In my view, the trial judge took the very type of formulaic approach Binnie J. was warning against. Recall that in considering the similarities and dissimilarities of the evidence, the trial judge made the following observation:

[T]here are at least as many dissimilarities as there are similarities. Further, I find that collectively, the dissimilarities differentiate the [C.K.] assaults from the [J.C.] allegations more than the similarities unify the [C.K.] assaults and the [J.C.] allegations.

On the basis of this calculation, the trial judge held that the probative value of the proposed similar fact evidence was diminished.

[53] In so doing, the trial judge failed to consider the qualitative value of the distinctive features between C.K.’s evidence and the evidence of the complainant. These include the evidence that the respondent wore a short black robe when he engaged in the sexual assaults, and the unique and distinctive manner in which the respondent used pornography as a prelude to sexual assaults. In both cases, the respondent gave the complainants pornography, leaving them alone with it and then returning.

[54] Further, what constitutes sufficient similarity is a contextual exercise which requires the court to bear in mind the issue to which the evidence is directed. In this case, the issue is not the alleged identity of the perpetrator; it is whether the acts alleged by J.C. took place. In R. v. Cresswell, 2009 ONCA 95, at para. 9, this court stated:

We note as well that Handystates that admissibility is conditioned by the issue to which the evidence is directed. Here, the evidence went not to identity, 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.

[55] By adopting what was essentially a numerical approach to the calculation of similarities and dissimilarities, the trial judge ignored the qualitative aspect of the evidence and did not adopt a contextual approach.

(b) Flaws in the trial judge’s treatment of the prejudicial effect of the similar fact evidence

[56] The trial judge’s legal reasoning with respect to the prejudicial effect of the proposed similar fact evidence was also flawed. He held that the respondent would find it very difficult to make full answer and defence, because over twenty years had elapsed since the offences involving C.K. occurred. He then concluded:

This will cause me, as a trier of fact, even as a judge alone, to be in conflict or confused about the similar fact evidence and its value to the purposes proposed by the Crown. This is significant reasoning prejudice.

[57] In so holding, the trial judge significantly overstated the risk of reasoning prejudice in this case. As a preliminary matter, the risk of reasoning prejudice is considerably reduced in judge alone trials: R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1,at para. 94. As Borins J.A. observed in R. v. T.B., 2009 ONCA 177, 243 C.C.C. (3d) 158, at para. 27:

As trial judges are presumed to know the law and the proper and improper uses of the 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.

[58] The trial judge in this case had already heard the proposed similar fact evidence during the voir dire, and his knowledge of it was not eliminated by its exclusion. In the light of his familiarity with the proper inferences that could be drawn from the evidence if it were admitted, the risk that he would place undue weight on it in determining the respondent’s culpability was probably minimal.

[59] In any case, C.K. testified on the voir dire and was fully cross-examined. The respondent’s counsel did not raise any issue as to his inability to make full answer and defence. In my view, the trial judge overstated the potential prejudice of the evidence to the respondent’s interest in a fair trial. In addition, the trial judge appears to have overlooked the fact that society too has an interest in a fair trial.

[60] The trial judge’s errors in principle with respect to both the probative value of the evidence and its prejudicial effect mean that his decision to exclude the proposed similar fact evidence is not entitled to deference.

E. the trial judge’s errors had a material bearing on the respondent’s acquittal

[61] Because this is a Crown appeal, it is not enough for the Crown to show that the trial judge erred in principle in the manner in which he dealt with the similar fact evidence. The Crown must also satisfy the court that the trial judge’s error had a material bearing on his acquittal and that, absent the error, the verdict would not necessarily have been the same: R. v. Graveline, 2006 SCC 16,[2006] 1 S.C.R. 609, at paras. 14-16.

[62] In my opinion, the Crown has discharged its burden in this case.

[63] It is clear that the trial judge was satisfied that the similar fact evidence was probative of live issues in the prosecution. He found that “… the proposed similar fact evidence has some probative value for the purpose of proving that [the respondent] assaulted [JC.] as [J.C.] testified.” He further found that “[t]he proposed similar fact evidence also has some probative value for the purpose of supporting [C.K.’s] credibility.”

[64] Moreover, as I have described above, the trial judge’s failure to consider the qualitative force of the similiarities between the proposed evidence and the acts charged, and the undue weight he gave to the possibility of collusion, led him to significantly and improperly discredit the probative value of the similar fact evidence.

[65] The trial judge further erred by overstating the risk of reasoning prejudice and the possible impairment of the respondent’s ability to make full and answer and defence. Bearing in mind that this was a judge alone trial, the trial judge’s conclusion on reasoning prejudice was a serious error in principle.

[66] Yet even with the trial judge’s errors in principle, he described the application as “a very close call”. Absent his errors in principle, especially his error regarding the prejudicial effect of the evidence, it is likely the trial judge would have admitted the proposed similar fact evidence; indeed, he ought to have done so.

[67] The respondent submits that, even had the trial judge admitted the similar fact evidence, it would not have allayed the trial judge’s concerns respecting the internal and external inconsistencies in J.C.’s evidence. I agree that the trial judge was troubled by the potential lack of credibility and reliability of J.C.’s testimony. For example, the trial judge accepted the evidence of J.C.’s mother, that, over her seven year relationship with the respondent, she had never seen pornographic magazines in his possession or the home – despite, I would note, J.C.’s uncle’s testimony that the respondent “always had dirty books around.”

[68] However, as I have explained above, the proposed similar fact evidence was directly relevant to and probative of J.C.’s credibility. Had the trial judge admitted the similar fact evidence, he would have had an important piece of extrinsic evidence to support a legitimate chain of reasoning that the respondent had assaulted J.C. I therefore cannot accept the respondent’s argument that the admission of the similar evidence would have had no part to play in the trial judge’s ultimate conclusion. Rather, it seems to me that, absent the trial judge’s errors, the verdict would not necessarily have been the same.

F. CONCLUSION

[69] The trial judge’s errors in law and legal reasoning had a material bearing on his exclusion of the similar fact evidence and, ultimately, the respondent’s acquittal. Accordingly, I would allow the appeal and order a new trial.

Released: FEB 14, 2013

“KMW” “Karen M. Weiler J.A.”

“I agree R.A. Blair J.A.”

“I agree Paul Rouleau J.A.”

[^1]: Whether or not there is an “air of reality” to the allegation of collusion is a question of law: see, by analogy, R.v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 55, where the majority of the Supreme Court held that “[w]hether or not there is an air of reality to a defence is a question of law, subject to appellate review.”