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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

486.4(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 victim of the right to make an application for the order; and

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

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(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.

486.4(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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2018-05-16

Docket: C63057

Judges: Rouleau, Tulloch and Fairburn JJ.A.

Between:

Her Majesty the Queen Respondent

and

S.C. Appellant

Counsel:

S.C., acting in person
Julianna Greenspan, appearing as duty counsel
Deborah Krick, for the respondent

Heard: April 5, 2018

On appeal from: The conviction entered on March 10, 2016 and the sentence imposed on December 8, 2016 by Justice Beth A. Allen of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] Introduction

[1] The appellant was convicted of three counts of historical sexual assault against two of his teenage nieces, following a jury trial. These offences were committed between 1976 and 1986. The trial judge imposed a global sentence of six years.

[2] The appellant appeals from his conviction and sentence. He argues that the trial judge erred in admitting similar fact evidence of his conviction in 2009 for sexual offences against his two teenage step-daughters.

[3] For the reasons that follow, we see no error in either the trial judge's ruling on the similar fact application or on the sentence imposed. We would dismiss the appeal.

The Offences

[4] The appellant was convicted by a jury in relation to historical sexual offences against two of his nieces, GS and VS. The offences took place over a ten-year period between 1976 and 1986. GS was abused between 1976 and 1980; VS from 1983 to 1986. GS and VS were between the ages of 14 and 16 when the abuse started. The offences would occur routinely on weekend family gatherings at the complainants' family home.

[5] The appellant was convicted on one count of rape and one count of indecent assault against GS. The facts of the rape conviction were as follows. GS was upstairs preparing to take a shower. She was wrapped in a towel. The appellant pushed his way into the bathroom, locked the door and forced vaginal intercourse upon her.

[6] GS testified that on many other occasions the appellant would grope her breasts and vagina over top of her clothes. This would occur when they were alone in a room of her family home. The appellant would also make lewd remarks towards her.

[7] The appellant was convicted on one count of sexual assault of VS. VS testified that the appellant forcefully kissed her on the driveway outside her home. She also testified that the appellant caught her on a landing on a stairway in her home and groped her vagina and breasts when no one else was present. The appellant also repeatedly made sexually lewd comments towards her.

[8] GS and VS testified that the appellant would bribe them with money and shopping not to tell anyone. GS also said that the appellant warned her that if she did tell someone, there would be trouble.

The 2009 Convictions

[9] The appellant pled guilty to sexually assaulting his step-daughter CH and sexually exploiting his step-daughter DH in 2009. The offences occurred in 2007.

[10] The facts with respect to CH were as follows. CH had undergone minor surgery and was recovering at home in bed. The appellant was tasked with caring for her. On several occasions, he would take water to her, and while carrying the water, his hand would brush against her breasts. On another occasion, CH awoke to find the appellant near her vagina. She asked him what he was doing. He asked if he could kiss it. CH pushed him away.

[11] With respect to DH, the appellant would repeatedly ask if he could rub lotion on her legs. On two occasions, DH pushed him away after he rubbed lotion too close to her vagina. The appellant also masturbated in front of DH on several occasions. This would happen when she was home from school and other members of the family were away from the house.

The Trial Judge's Ruling

[12] The Crown brought an application to admit the evidence of the appellant's prior convictions as similar fact evidence. The trial judge reviewed the facts of the prior convictions and the anticipated evidence from GS and VS. She then set out the applicable legal principles in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, which provides that similar fact evidence is presumptively inadmissible and the Crown has the onus to establish that the probative value of the evidence outweighs its prejudicial effect. Probative value depends on: (1) the strength of the similar fact evidence; (2) the live issue to which the evidence relates; and (3) the relative cogency of the factors connecting and distinguishing the similar fact evidence and the evidence of the charged offences.

[13] The trial judge noted that the live issue to which the probative value related was "the unlikelihood that the complainants would assert similar conduct by [the appellant] unless that conduct really happened." The trial judge proceeded to assess the degree of similarity between the proposed evidence and the current charges. She undertook a detailed review of the evidence, and found that while there were factual differences, such as the nature of acts, which varied from forced vaginal sex to groping, the circumstances in which the acts occurred demonstrated a high degree of similarity. The trial judge noted the following similarities in circumstances:

The appellant focused his attention on teenage girls;
The appellant had a familial relationship with the complainants (GS and VS were his nieces, CH and DH were his step-daughters);
The appellant occupied a position of trust in relation to the complainants and the complainants were vulnerable; and
The appellant took advantages of circumstances in private homes, when no one else was around to observe his conduct, to abuse the complainants.

[14] The trial judge concluded that these similarities in circumstances outweighed the dissimilarities in the actual conduct. She found that the proposed similar evidence was sufficiently similar to raise the inference that the appellant had "situation-specific propensity to seek out young females connected by family relationships". The similar fact evidence suggested that the appellant would approach the girls while they were vulnerable – for example when they were alone, on their way to the shower, or lying in bed recovering from surgery – and abuse them.

[15] The trial judge next considered whether the prejudicial effect of the evidence outweighed its probative value. She noted that the danger in admitting similar fact evidence rests in the possibility that the jury may engage in moral and reasoning prejudice. Moral prejudice refers to the risk that the trier of fact may infer guilt from general disposition or propensity. Reasoning prejudice relates to the concern that introducing similar fact evidence may confuse or distract the trier of fact from the charges that are before the court.

[16] The trial judge found that the prejudicial effect of the proposed evidence was diminished because of four factors:

Regardless of whether the similar fact evidence was admitted, the jury would be aware of the appellant's previous convictions. Knowledge of the appellant's conviction was an essential component of the complainants' narrative for explaining what prompted them to go to the police after so many years.
The Crown did not intend to call CH or DH at trial. Consequently, the evidence of the previous convictions could be read into the record and the jury would not see or hear from sympathetic victims.
The jury could be instructed on the proper and improper uses of the similar fact evidence.
There was little risk of jury confusion or distraction given the simple set of facts underlying the proposed similar fact evidence.

[17] The trial judge found that the probative value of the similar fact evidence outweighed its prejudicial effect and admitted the evidence of the appellant's prior convictions.

Analysis

[18] The appellant submits that the trial judge erred by focusing on the evidence linking the appellant to each incident of abuse, rather than the numerous and important dissimilarities between the actual acts of abuse. The appellant relies on this court's decision in R. v. Woodcock (2003), 177 C.C.C. (3d) 346 (Ont. C.A.), in which Cronk J.A. held that generally, evidence connecting the accused to the alleged acts is only considered "if the manner of commission of the alleged similar acts tends to suggest the likelihood that all the alleged acts were committed by the same person" (at para. 81). See also: R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, at paras. 80-81. In other words, there must be a similarity between the acts themselves before the trial judge can consider the evidence linking the accused to those acts.

[19] The appellant submits that there are few similarities and overwhelming dissimilarities between the proposed similar fact evidence and charged conduct. First, the proposed similar fact evidence and evidence underlying the present charges occurred thirty years apart. Second, the nature of the acts varied greatly. The 2009 convictions related to breast rubbing, applying lotion, and masturbation. The charged conduct includes vaginal penetration, breast and vaginal groping, and a kiss.

[20] We disagree.

[21] First, a trial judge's ruling on similar fact evidence is owed deference. This court may only interfere if the analysis is unreasonable or there is a misapprehension of evidence: R. v. J.H., 2018 ONCA 245, at para. 11; R. v. Cresswell, 2009 ONCA 95, at para. 7.

[22] Second, at para. 81 in Woodcock, Cronk J.A. acknowledged that the distinction between linkage evidence and similarity is blurred and that in certain circumstances the evidence connecting the accused to the acts may inform the analysis of similarity. This was confirmed by Watt J.A. in MacCormack at para. 81:

The rule against considering both evidence of the manner in which allegedly similar acts were committed and evidence of an accused's involvement in the acts and determining whether the similarity requirement has been met is a general prohibition, not an unyielding or invariable rule that brooks no exception: Arp at para. 49; Woodcock at paras. 79-80. Sometimes, it is difficult to draw a bright line between similarities in the manner in which an act is committed and an accused's involvement in that act. To apply a test of whether the objective improbability that an accused's involvement in the alleged acts is the product of coincidence without any regard to the evidence connecting the accused and the acts seems unduly antiseptic.

[23] Third, and most importantly, in sexual assault cases, similar circumstances are often more compelling than similarities or dissimilarities in conduct. As noted by this court in R. v. B. (L.) (1997), 116 C.C.C. (3d) 481 (Ont. C.A.), at para. 37, "in cases of sexual assault, the similarities or dissimilarities between the sexual acts that are alleged are, of course, relevant, but often not as compelling as the circumstances surrounding the incidents". The trial judge expressly relied upon this court's decision in B. (L.) as well as R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 91.

[24] The trial judge provided careful and thorough reasons. She considered each point of dissimilarity, but concluded that the similarity in the circumstances of the incidents provided the requisite degree of connection. She placed particular emphasis on the fact that: (1) the abuse occurred within a private family home while the complainants were isolated; and (2) the complainants were vulnerable to the appellant as he occupied a position of trust as an uncle/step-father. We see no error in her analysis or conclusion that there was a persuasive degree of connection.

[25] In J.H. this court upheld a trial judge's similar fact ruling despite the fact that "none of the sexual abuse described by the complainants was exactly the same" (at para. 16). In that case the allegations involved: (1) the appellant's children and step-child; (2) the abuse occurred inside the family home; (3) the biological complainants' were between the ages of six and 17; and (4) some of the conduct was very similar (at para. 16). While the appellant correctly points out that J.H. was a case involving cross-count similar fact evidence, the point is that similarity in the circumstances of the incidents can suffice notwithstanding some dissimilarity in the nature of the acts.

[26] In this case the allegations involve: (1) the appellant's nieces and step-daughters; (2) abuse inside a private family home (the appellant's and the complainants'); (3) the complainants were all teenage girls; and (4) some of the conduct, in particular the allegations that the appellant would grope or attempt to touch the complainants' vaginal area and breasts, is similar. We see no error in the trial judge's analysis of the degree of connection between the charged conduct and similar fact evidence.

[27] Nor do we see any error in the trial judge's assessment that the probative value of the similar fact evidence outweighed its prejudicial effect. This determination was open to the trial judge. She was alive to the dangers of moral and reasoning prejudice. However, she found that the prejudicial effect did not outweigh the probative value given that: (1) the jury would hear about the convictions in any event (a finding the appellant does not challenge); and (2) the jury could be carefully instructed regarding the permissible and impermissible uses of similar fact evidence.

[28] We note as well that the trial judge did provide strong limiting instructions to the jury about the use of similar fact evidence:

If you conclude there is a pattern of similar behaviour between the other things that [the appellant] did in 2007 and the conduct with which he has been charged in this case, you may use the evidence of that similar behaviour to conclude or help you to conclude that the offences alleged before this court actually took place.

[The appellant] pleaded guilty in 2009 to the sexual assault and to sexual exploitation in relation to the other two girls. You must not use the evidence of that conduct to conclude or help you conclude that the offences charged in the case before you likely took place because [the appellant] is a person of general bad character or disposition who likely committed the offences charged because of that character or disposition.

Further you must not punish [the appellant] for that past conduct by finding that the offences charged before this court actually took place, and that he is guilty of them simply because those other things happened before.

[29] As a result, we would not give effect to this ground of appeal.

Appeal from Sentence

[30] The appellant also seeks to appeal from his sentence. He maintains that the global sentence of six years is too harsh. We disagree. The appellant repeatedly sexually abused his teenage nieces. The abuse spanned many years. The acts escalated over time, including a full act of vaginal intercourse. The appellant bribed the complainants to remain quiet or threatened them that things would get worse if they told anyone. In these circumstances, it cannot be said that this was an unfit sentence. The appellant directed us to no error in principle on the part of the trial judge. In these circumstances, we see no error in the sentence imposed.