COURT OF APPEAL FOR ONTARIO

DATE: 20251215

DOCKET: COA-24-CR-0019

Paciocco, George and Favreau JJ.A.

BETWEEN

His Majesty the King

Respondent

and

S.S.

Applicant/Appellant

R. Graham Zoppi, for the appellant

Catherine Weiler, for the respondent

Heard: June 25, 2025

On appeal from the convictions entered by Justice Patrick J. Monahan of the Superior Court of Justice, sitting with a jury, on March 14, 2023.

George J.A.:

[ 1 ] The appellant was charged with several sexual offences against two sisters, C.L. and P.L. C.L. testified that the appellant sexually assaulted her on three occasions when she was eight years old. P.L. testified to one incident of sexual touching by the appellant when she was six years old. The appellant was a member of the complainants’ extended family and was between eighteen and nineteen years old at the relevant time. The sisters did not report the incidents to police until the summer of 2018.

[ 2 ] The Crown brought two mid-trial applications: (i) a cross-count similar fact application, and (ii) an application for permission to introduce prior consistent statements. The trial judge granted both applications. The jury found the appellant guilty on six counts in relation to C.L., and one count in relation to P.L. He received a concurrent five-year penitentiary sentence.

[ 3 ] The appellant appeals the convictions on the basis that the trial judge erred in granting the Crown’s applications. If the appeal is allowed, he seeks a new trial.

[ 4 ] For the reasons that follow I would dismiss the appeal.

BACKGROUND FACTS

[ 5 ] As mentioned, C.L. testified about three incidents involving the appellant. She alleged that during the first incident the appellant forced her to masturbate him until ejaculation at her aunt’s residence while her cousins were upstairs watching TV. The second incident occurred a few weeks later, again at C.L.’s aunt’s house. C.L. testified that while in the living room, the appellant forced her to touch his penis. He also showed her an image of a woman performing fellatio and asked her to do the same but was interrupted when C.L.’s aunt entered the room. The third incident occurred a few weeks later at C.L.’s family residence. The appellant was babysitting C.L. and her siblings while their parents were out delivering newspapers and their grandfather, who lived with the family, was away on a trip. C.L. testified that the appellant came into her bedroom and lied down beside her. He started stroking his penis while rubbing and digitally penetrating C.L.’s vagina. C.L. says she screamed and ran out of the bedroom, awaking her siblings.

[ 6 ] P.L. testified about one incident of sexual touching at the family home. She said that the appellant was babysitting her and her siblings while their parents were delivering newspapers and their grandfather was visiting Cuba. This is presumably the same night as the third incident described by C.L. In any event, P.L. said the appellant entered her bedroom, touched her buttocks, and then forced her to lie on top of him. Later, he removed her underwear and digitally penetrated her.

[ 7 ] C.L. testified that she told her mother and aunt separately about these incidents, around the time they occurred, but did not disclose any details. She testified that her mother and aunt took no further action because they did not want the family to know about the allegations, fearing they would harm C.L.’s reputation. The limited nature of C.L.’s disclosure was confirmed by her mother when she testified at trial. P.L. also told her aunt about the sexual assault around the time it occurred, but like her sister did not divulge any details. P.L. only told her mother about the assault after she spoke to the police in 2018.

[ 8 ] Both C.L. and P.L. testified that they told each other they had been touched by the appellant. Each maintained that they did not share details of their respective experiences. C.L. testified further that in grade eight and in high school she spoke about what the appellant had done to her with some friends, teachers, and a CAS worker. She decided to go to police on her own in June 2018.

[ 9 ] After providing a statement to police, C.L. asked P.L. if she intended to do the same. Again, C.L. did not divulge the details of her assault to P.L. on this occasion; nor did P.L. P.L. reported to the police a month later in July 2018.

[ 10 ] The complainants’ memory of the incidents evolved over time and their evidence at trial was different than their prior disclosures to the police in some respects. C.L. originally thought that the three incidents took place in 2008. She later advised that they happened in 2009. C.L. also initially claimed that the appellant penetrated her with his penis during the third incident, but later testified that the appellant used his finger. When testifying, P.L. provided details that were not included in her original statement to the police. Both complainants explained that they recalled certain details of the incidents through “vivid dreams”.

Similar Fact Ruling

[ 11 ] The trial judge granted the Crown’s application to admit the evidence of each complainant as similar fact evidence for the other showing that the acts they alleged occurred. In his reasons, the trial judge took note of several similarities between C.L. and P.L.’s accounts: they were close in age when they say the appellant touched them (six and eight years old); the incidents occurred in and around the same time (2008-2009); they are sisters and the appellant is a member of their extended family; the appellant occupied a position of trust towards them; both C.L. and P.L. described incidents that occurred at night, while their parents and grandfather were away and the appellant was caring for them; and the appellant had digitally penetrated them both.

[ 12 ] The trial judge also acknowledged dissimilarities in the complainants’ respective accounts, including that C.L. described the appellant masturbating during one of the assaults, while P.L. did not. Nevertheless he concluded that the specific sexual acts or body parts involved were less compelling than the similarities in the circumstances surrounding the alleged assaults.

[ 13 ] The trial judge also found that there was no “air of reality” to the allegation that C.L. and P.L. colluded, either “intentionally or by accident”, to alter their evidence to be more similar or consistent. He found C.L. and P.L.’s evidence that they did not disclose the details of their assaults to each other to be credible given the firmly held religious belief within their family that such sexual experiences would render them impure.

[ 14 ] Further, the trial judge found that the fact the complainants’ memories changed over time did not give rise to a concern of inadvertent tainting. The incidents they spoke of occurred a decade earlier when they were much younger. In the trial judge’s view, it was significant that C.L. and P.L.’s core allegations remained the same and that any changes in their descriptions of the incidents did not render them any more similar. He found further that C.L. and P.L.’s willingness “to acknowledge that they might have originally been mistaken in certain respects” bolstered the credibility of their accounts.

[ 15 ] Lastly, the trial judge held that any potential for moral prejudice could be mitigated by a jury instruction and that any risk of reasoning prejudice was limited by the fact the jury had already heard the evidence of both complainants. In the end, the trial judge determined that the probative value of the evidence outweighed its prejudicial effect and granted the application.

Prior Consistent Statement Ruling

[ 16 ] During the trial, the Crown sought permission to elicit evidence from the complainants about their attempts to tell the adults in their life about what the appellant had done to them, as well as how they ultimately came to disclose the incidents to the police. In the face of no objection from defence counsel, the trial judge curtly granted the request, noting only that how the complainants came to disclose the incidents would be a “natural question that the jury’s going to want to know”.

DISCUSSION

The trial judge did not err in admitting the cross-count similar fact evidence

[ 17 ] The appellant submits that the trial judge erred in finding that the similar fact evidence had significant probative value by focusing on “generic similarities” in the circumstances surrounding the acts, and not on specific similarities and dissimilarities. He submits further that the trial judge erred in his treatment of the possibility of collusion.

[ 18 ] I reject both arguments.

[ 19 ] In his reasons the trial judge referred to the test in R. v. Handy , 2002 SCC 56 , [2002] 2 S.C.R. 908, which permits presumptively inadmissible similar fact evidence to be put to the jury if the Crown proves on a balance of probabilities that its probative value (to an issue other than mere propensity) outweighs its prejudicial effect. The trial judge found that the evidence of each complainant in this case was admissible across counts as evidence that the alleged acts occurred because (i) irrespective of the differences, the circumstances surrounding their allegations were similar enough to support that inference, and (ii) there was no air of reality to the appellant’s allegation of collusion.

[ 20 ] An assessment of the probative value of proposed evidence depends largely on the “extent to which the proposed evidence supports the inferences the Crown seeks to make” and the “extent to which the matters the evidence tends to prove are live issues in the proceeding”: R. v. Z.W.C. , 2021 ONCA 116 , 155 O.R. (3d) 129, at para. 98 . The material live issue the Crown sought to use the similar fact evidence to prove in this case was that the criminal acts the sisters alleged occurred. The cogency of the inference the Crown invites depends upon there being sufficient similarities to make it objectively improbable that the two sisters would “coincidentally give the same type of evidence” about the alleged acts: R. v. Norris , 2020 ONCA 847 , 398 C.C.C. (3d) 1, at para. 17 . “Striking similarity” is not generally required to yield probative value when similar fact evidence is being offered for this purpose: Norris , at para. 15 . The determination of whether it does and whether that probative value outweighs the prejudice the evidence will cause is for the trial judge to make and is subject to a deferential standard of review: Norris , at para. 26 . A trial judge’s decision on a similar fact application is owed substantial deference and should only be interfered with “if the analysis is unreasonable or if there is legal error or a misapprehension of material evidence”: R. v. Arp , 1998 769 (SCC) , [1998] 3 S.C.R. 339, at para. 42 ; R. v. J.H. , 2018 ONCA 245 , at para. 11 . I see no basis for interfering with the trial judge’s assessment.

[ 21 ] As the Supreme Court held in R. v. Shearing , 2002 SCC 58 , [2002] 3 S.C.R. 33, at para. 60 , “the judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance”. That is to say, the analysis is not to be formulaic but rather an inquiry into whether, based on factors such as proximity in time, similar details or distinctive features, and circumstances surrounding or relating to the similar acts, there is a “persuasive degree of connection between the similar fact evidence and the offence charged”: Handy , at para. 82 ; Shearing , at para. 48 .

[ 22 ] The trial judge identified several similarities in the circumstances and context that connected the incidents described by C.L. and P.L. thereby supporting the acts they described. These similarities revealed a pattern of behaviour by the appellant that manifested itself in circumscribed situations, including, as I discussed earlier: the incidents occurred in the same general timeframe; the complainants, two sisters, were members of the appellant’s extended family; the appellant was in a position of trust; and each complainant described an incident at night, in their home, while their parents and grandfather were away and the appellant was babysitting them.

[ 23 ] The trial judge’s focus on the circumstances surrounding the alleged assaults does not warrant appellate intervention. In Shearing , the Supreme Court acknowledged that although the sexual acts alleged were not particular or distinctive, underlying unity was found in the appellant’s abuse of authority in relation to the complainants: para. 50. And this court has held repeatedly that in sexual assault cases, “similar circumstances are often more compelling than similarities or dissimilarities in conduct”: R. v. S.C. , 2018 ONCA 454 , 361 C.C.C. (3d) 419, at paras. 23-26 ; R. v. B.(L.) (1997), 1997 3187 (ON CA) , 35 O.R. (3d) 35 (Ont. C.A.), at pp. 52-53, leave to appeal refused, [1997] S.C.C.A. No. 524; R. v. A.E.S.P. , 2022 ONCA 405 , at para. 25 ; J.H. , at paras. 19-21; R. v. J.C. , 2021 ONCA 787 , 407 C.C.C. (3d) 3, at paras. 68-72 .

[ 24 ] Much like this appeal, in B.(L.) the “only real issue with respect to [the] allegations was whether they occurred”: p. 68. In that case, this court determined that it was open to the trial judge to consider, as he did, the similarity in the appellant’s relationship with each of the complainants, namely, a predatorial relationship facilitated by the appellant’s exploitation of his position of authority or “grooming” of his students: pp. 68-69. Likewise, in the present appeal, the circumstances and context underpinning the trial judge’s decision to allow the application had to do with the appellant taking advantage of various opportunities to be alone with the complainants.

[ 25 ] I also reject the appellant’s argument that the trial judge ignored the dissimilarities in the acts alleged during his probative value analysis. The trial judge reviewed the specific allegations of each complainant in detail, writing that:

To be sure, there were some dissimilarities in the incidents described by the complainants. For example, CL said each of the three assaults involved [the appellant] masturbating, whereas PL did not observe any such behaviour on [the appellant’s] part. CL also described two incidents that had taken place at her aunt’s house, in addition to the incident at their family home.

[ 26 ] These obvious dissimilarities, fairly acknowledged by the trial judge, were not determinative. And for reasons I have already explained, they did not need to drive his probative value analysis.

[ 27 ] Nor did the trial judge err in finding that the allegation of collusion did not have an “air of reality”. The framework articulated in Handy admits evidence for which, “absent collaboration, it would be an affront to common sense to suggest that the similarities were due to coincidence”: para. 41. In other words, collusion rebuts the improbability of coincidence. The “air of reality” test is engaged when a potential issue of collusion between witnesses arises. If there is an “air of reality” to an allegation that witnesses discussing the events may have colluded (purposely or inadvertently), the Crown must prove, on a balance of probabilities, that the similar fact evidence was not tainted by this collusion: Handy , at paras. 106, 112 .

[ 28 ] It was open to the trial judge to find that there was no air of reality to the allegation of collusion between C.L. and P.L. on the record before him, which included C.L and P.L.’s credible testimony that they had not shared details of the abuse with each other. It is well-settled in this court’s jurisprudence that neither the opportunity to collude nor a “disclosure conversation” between complainants, is sufficient on its own to give rise to an “air of reality”: Handy , at para. 111-12 ; Shearing , at paras. 43-44 ; R. v. Wilkinson , 2017 ONCA 756 , 356 C.C.C. (3d) 314, at para. 31 . The trial judge properly heeded the warning to not jump to a conclusion about collusion “simply because of a conversation”: R. v. B.H ., 2022 ONCA 812 , at para. 19 .

[ 29 ] I also reject the appellant’s argument that changes in the complainants’ testimony supported a finding of inadvertent collusion thereby colouring their allegations. For instance, C.L.’s evidence about the timing of the assault did not change in a way that conformed to P.L.’s evidence; it diverged, which undercut any suggestion of collusion. Further, while both complainants testified that they recalled additional details after they had dreams about the assaults, the actual details recalled did not advance a theory of collusion. At trial, C.L. corrected her initial indication that the appellant penetrated her with his penis, and P.L. remembered that at one point during the assault she was lying on top of the appellant.

[ 30 ] In the end, the trial judge found the complainants’ evidence that they had not shared specific details of the assaults with one another to be credible. There is no basis to disturb this finding. Consistent with the Supreme Court’s decision in Handy , similar fact evidence must meet the threshold of being “reasonably capable of belief”, and trial judges are to consider the credibility of the similar fact evidence in exercising their gate-keeping function: para. 134. This court has similarly held that a trial judge is entitled to assess whether similar fact witnesses are credible and reliable in their analysis of possible collusion: R. v. T.D.A ., 2017 ONCA 910 , at paras. 10-11 .

[ 31 ] It is true that a judge, sitting alone, would have to be careful at the admissibility stage about making definitive credibility findings (beyond whether the similar fact evidence is reasonably capable of belief), so as to not prejudge the issues before hearing all of the evidence and submissions on the trial proper. But this was a jury trial. The jurors in this case were not privy to what occurred at the similar fact voir dire , would not have been aware of the trial judge’s reasons for admitting the similar fact evidence (and specifically his explanation for rejecting the possibility of collusion), and in the final charge were instructed to draw their own conclusions about the complainants’ credibility.

[ 32 ] Crucially, despite his finding that there was no air of reality – which would have obviated the need for the Crown to disprove collusion before the similar act evidence could be considered – at various points in his final instructions the trial judge directed the jury to only use the evidence across counts if they first found that the complainants had not colluded:

Crown counsel must prove [the appellant’s] guilt of each charge beyond a reasonable doubt based on the evidence relating to that particular charge. However provided that two preconditions are satisfied (which I will describe for you in a moment), in deciding whether the Crown has proven beyond a reasonable doubt that the incidents described by [C.L.] actually occurred, you may take into account the evidence of the incident described by [P.L.], and vice versa.

The second precondition is that you must be satisfied that any similarity of one complainant’s testimony to that of the other complainant, cannot be the product of influence from, or collusion or collaboration between or amongst the complainants . In other words, you need to be satisfied that any distinctive pattern of conduct described by the complainant’s cannot be the result of the fact that [C.L.] and [P.L.] may have shared their stories with one another and, as a result, whether accidentally or on purpose, they have changed or altered their versions of what they say happened so that their testimony would be or seem similar to one another and thus more convincing.

[A]s I also earlier indicated, in this case, provided that two preconditions are satisfied, you may use the evidence of [P.L.] in deciding whether the events described by [C.L.] actually occurred, and vice versa … The second precondition is you must be satisfied that any similarity of one complainant’s testimony to that of the other complainant cannot be the product of influence from, or collusion or collaboration with the other complainant, or anyone else … Both of these two preconditions must be satisfied before you can consider the evidence of one complainant in evaluating the evidence of the other complainant. In other words, if you find either that the way in which the alleged incidents occurred does not reveal a distinctive pattern or conduct on the part of [the appellant], or that any such apparent distinctive pattern of conduct is the product of influence or collaboration between the complainants, or someone else, then you may not use evidence of one complainant in helping you to decide whether Crown counsel has proven beyond a reasonable doubt that the incident(s) involving the other complainant actually occurred. [Emphasis added.]

[ 33 ] The trial judge then engaged in a lengthy discussion about how the jury should go about determining whether this precondition had been satisfied.

[ 34 ] At the end of the day, the trial judge’s comprehensive instructions fairly described the defence position that the complainants had colluded and instructed the jury on its “duty” to rule out collusion before considering the evidence across counts: R. v. Burnie , 2013 ONCA 112 , 303 O.A.C. 76, at para. 41 .

[ 35 ] Finally, I note that the appellant does not take issue with the trial judge’s instructions on the permitted and impermissible uses of the similar fact evidence.

[ 36 ] I therefore reject this ground of appeal.

The trial judge did not err in admitting the complainants’ prior consistent statements

[ 37 ] The appellant argues that the trial judge erred in allowing the jury to hear about the complainants’ disclosures of abuse before their reports to police in 2018. This includes C.L’s disclosures to her mother and aunt, P.L.’s disclosure to her aunt, C.L and P.L’s disclosures to each other, and C.L’s disclosures to teachers and a CAS worker.

[ 38 ] The appellant takes issue with the trial judge determining admissibility after only a brief exchange with counsel, without any advance discussion about the precise nature of the statements to be tendered. He also highlights the fact that the trial judge never referred to the applicable test, and did not hold a voir dire . The appellant argues that the Crown should not have been permitted to introduce these presumptively inadmissible statements because he did not allege recent fabrication, nor were the statements an essential part of the narrative. In the appellant’s view, the statements became a significant feature of the trial, prejudicing him by unfairly bolstering the credibility of the complainants when credibility was the central issue.

[ 39 ] I am unpersuaded.

[ 40 ] The trial judge’s very brief reasons made it clear that he was admitting the prior consistent statements for a narrative purpose, explaining that the jury would “want to know” how the charges before them came to be given the fifteen-year gap between the events at issue and trial.

[ 41 ] To be admissible under the narrative exception, the prior statement must be an essential “part of the narrative”, which means the statement “advances the story from offence to prosecution, or explains why so little was done to terminate the abuse or bring the perpetrator to justice”: R. v. Fair (1993) , 1993 3384 (ON CA) , 16 O.R. (3d) 1 (Ont. C.A.), at p. 16; R. v. A.E.R. (2001) , 2001 11579 (ON CA) , 43 C.R. (5th) 340 (Ont. C.A.), at paras. 14-16 . Narrative evidence does not prove a material fact and does not assist the trier of fact in evaluating guilt or innocence. It is only “admissible for the purpose of understanding the witness’ story”: A.E.R ., at para. 15 .

[ 42 ] This court has, on many occasions, affirmed the introduction of this type of evidence as narrative “to provide chronological cohesion and eliminate gaps which would divert the mind of the listener from the central issue”: Fair , at p. 18; R. v. M.C. , 2014 ONCA 611 , 314 C.C.C. (3d) 336, at para. 64 ; R. v. Khan , 2017 ONCA 114 , 136 O.R. (3d) 520, at para. 30 , leave to appeal refused, [2017] S.C.C.A. No. 139.

[ 43 ] In my view, when the trial judge said that the jurors would “want to know” about the complainants’ prior disclosures, he was clearly intending to convey that they would want to understand the historical context of the matter, especially since so many years had passed between the date of the alleged events and the complainants’ reports to police. Although it is rarely essential to the narrative to admit multiple disclosures, in this case the evolution of the disclosure shows why it took as long as it did for the police reports to be made. The trial judge was entitled to treat all of these disclosures as essential to understanding the unfolding narrative.

[ 44 ] As the Crown pointed out in its submissions on appeal, any risk that the jury would use the prior statements to bolster the complainants’ credibility was significantly reduced because the jury did not hear details of the prior statements: A.E.R. , at para. 15 ; R. v. D.M. , 2022 ONCA 429 , 162 O.R. (3d) 444, at paras. 102 , 104; R. v. M.P. , 2018 ONCA 608 , 363 C.C.C. (3d) 61, at para. 86 ; R. v. J.H. , 2020 ONCA 165 , at para. 126 . Moreover, the Crown did not just refrain from eliciting details of the disclosures, it did not invite misuse, explicitly telling the jury that the purpose of this evidence was limited to understanding why the police were not immediately notified:

However, the fact that [C.L. and P.L.] have both made prior statements about these incidents to members of their family does not mean it is more likely that their statements are true. His Honour will give you further instructions on this point.

[ 45 ] Before addressing the trial judge’s instruction on this point, it is important to note that the defence did not oppose the admission of the statements for the limited purpose proposed. In fact, the defence relied on the prior consistent statements to argue that given the number of statements C.L. made before – all opportunities to refresh her memory and accurately recall the events – she was not credible because her testimony continued to change and evolve. Of course, the ability of the defence to impeach a witness is not dependent on the Crown introducing the impeachment tools as evidence during the presentation of its case, but in these circumstances there was a rational, tactical basis for the defence to not object.

[ 46 ] Although the trial judge could have been more thorough in explaining why he was allowing this evidence to be put to the jury, and should have held a voir dire before formally ruling on admissibility, he directed the jury twice on the prohibited and permissible uses of this evidence. First, in a mid-trial instruction, he told the jury not to confuse repetition with accuracy and to refrain from using the prior statements to find that what the complainants alleged was more likely to be true. Then, in his final charge, the trial judge said this:

Now in considering this evidence, I remind you of my earlier instruction that the fact that a person has said the same thing about an event more than once does not make what they said about it more likely to be true. Repetition and accuracy are not the same thing.

In this case the previous statements that [C.L. and P.L.] made to others, including their mother, about the incidents involving [the appellant] were introduced in order to assist you in understanding how and when these incidents came to light. This is the only basis upon which you should consider these statements. You should not use the fact that [C.L.] made these statements on more than one occasion prior to trial to help you conclude that it is more likely that the statements are true.

[ 47 ] In my view, these were adequate instructions because they directed that the prior statements could only be used to “[understand] how and when these incidents came to light”, and specifically cautioned against oath helping. These instructions left no room for other, impermissible, uses.

[ 48 ] Lastly, the failure to object can be, and in this case is, a significant consideration in assessing the adequacy of an instruction on appeal. As discussed, not only did the lack of objection likely reflect a tactical decision by defence counsel, it was also a strong indication that counsel viewed the instruction that was given as fair.

[ 49 ] I therefore reject this ground of appeal.

CONCLUSION

[ 50 ] For these reasons I would dismiss the appeal.

Released: December 15, 2025 “D.M.P.”

“J. George J.A.”

“I agree. David M. Paciocco J.A.”

“I agree. L. Favreau J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.