WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) Mandatory order on application. — 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.

486.6 Offence. —(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.

Court Information

Court File No.: Durham Region 998 12 13086

Date: 2012-12-13

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

C.M.

Before: Justice Joseph De Filippis

Heard on: November 15, 19, 21 and December 4, 2012

Reasons for Judgment released on: December 13, 2012

Counsel:

Mr. G. Hendry — for the Crown

Mr. S. Fraser — for the accused

DE FILIPPIS J.:

Introduction

[1] C.M. stands charged that between the 2nd and 3rd day of June 2012 at the City of Oshawa, he committed the offences of sexual assault, sexual interference with a person under the age of 16 years, and invitation to sexual touching involving a person under the age of 16 years, contrary to sections 271, 151, and 252 of the Criminal Code, respectively. The complainant with respect to these three charges is TT. There is no dispute about date, jurisdiction and identity. The only issue is whether the defendant committed the acts alleged.

[2] The Crown proceeded by Indictment and the defendant elected trial in the Ontario Court of Justice. I conducted a voir dire to consider the Crown's application to rely on what it claims to be similar fact evidence with respect to six prior sexual assault victims. As part of that application, I held another voir dire to determine the voluntariness of a statement attributed to the defendant. On the trial proper I heard from the complainant and a neighbour. The similar fact evidence application featured the testimony of a sexual assault victim as well the criminal record and/or transcripts of previous sexual assault convictions. The voluntariness voir dire consisted of a psychological assessment and testimony from the corrections official who conducted it.

[3] I granted the similar fact application with respect to the defendant's misconduct involving two previous sexual assault victims. In this regard, I declined the Crown's application to tender the statement made by the defendant during the psychological assessment. For the reasons that follow, I find the defendant guilty of the three charges. These reasons also explain the similar fact evidence ruling and summarize the oral judgment given with respect to the voluntariness voir dire.

Trial Evidence

[4] TT is 15 years old. Her parents have been separated for three years and her mother lives with the defendant. She testified that she resided with her father and spent weekends with her mother and the defendant and, occasionally, visited after school. On the weekend in question, she joined her mother and the defendant at a neighbour's yard party. All consumed alcohol; the complainant said she had "one and one-half coolers". Later in the evening, TT's mother left the party and returned to her residence. She was followed by the complainant and, soon after, by the defendant.

[5] According to the complainant, the following events occurred at the home. TT changed into her pyjamas - boxer shorts and a T-shirt overtop her bra and underwear - and went to the kitchen to use the computer. When the defendant arrived from the party, he also changed his clothes and joined her at the kitchen table. He was dressed in a pink nightgown. This did not surprise her as she had seen him wearing a skirt and blouse before. She testified that he had explained he felt more comfortable in women's clothing. The defendant sat down beside TT and whispered "can I touch you". The complainant interpreted this as a sexual advance, told him to "fuck off", and went to the bathroom. The defendant followed her and, while TT sat on the toilet, again asked if he could touch her. TT pulled up her pants and returned to the kitchen. The defendant again followed and repeated his request to touch her. TT stood up and the defendant removed her shirt "as one would pull it off a baby". He then pulled down the complainant's boxer shorts and underwear. The defendant told TT that one of her girlfriend's said her "pussy stank" and he smelled her vaginal area, while seated in his chair. TT was "standing there in shock" throughout these events and added that the defendant was "extremely drunk". She went back to the bathroom and the defendant left the kitchen, presumably for bed. The next morning, TT's mother found her clothes on the hallway floor and asked "what were you doing?" to which she replied, "nothing".

[6] The complainant continued to visit her mother after these events. She testified that on one such occasion, about a week later, the defendant approached her and said; "Do you know when I smelled your pussy? Don't tell your mom, it will hurt your mom." Several weeks later, TT saw the defendant pull her mother from the porch of a neighbour's home and escort her to his home. This upset her and she disclosed the previous events to a neighbour, Ms F.. The latter reported it to TT's mother and called the police. The complainant said she had not wanted the police involved but needed someone to talk to. TT told Ms F. because "she went through this as a kid".

[7] TT provided a videotaped statement to the police about the events in question. She testified that she could not recall reporting that the defendant had licked her vagina. After refreshing her memory from the statement, that includes this detail, she testified that he had "tried to lick me" after she pushed his head back the second time but "his tongue did not touch my vagina".

[8] In cross-examination, TT was asked a number of questions about her mother's relationship with the defendant: She said that her parent's marriage ended after her mother had an affair with the defendant. She does not blame the defendant for this as "it was her choice and I now forgive mom". She denied the defendant's consumption of alcohol was a bad influence on her mother and said that since "they both drink too much" they are a bad influence on each other. The complainant also denied any link between her disclosure of the events and the defendant's intention to marry her mother; she explained that the engagement had been announced long before. In this regard, she conceded she no longer liked the defendant and added that what triggered her decision to disclose was witnessing the defendant pull her mother along the street.

[9] The complainant agreed the defendant had previously told her that he had been sexually assaulted and was convicted of sexually assaulting a niece. She also conceded she was aware the defendant had a "long criminal record and had spent most of his life in jail" but denied wondering what the offences were and if they included sexual assaults beyond the one involving his niece.

[10] TT did not tell the police that her mother had found her top and shorts on the hallway floor the morning after the incident. Indeed, she previously reported that after pushing the defendant away the final time, "I ran to the bathroom and pulled everything back on". When confronted with this she testified "I remember now, I pulled up my underwear in the bathroom". She explained that when the defendant pulled off her shorts, her underwear came down her legs but were not removed. When asked how the defendant managed to take her top off, she said, "I don't know, he just did". She testified that she did not call out to her mother because "she was a little bit drunk" and would not respond.

[11] The complainant stated that in the days immediately after the incident she wondered if it had really happened or if it was one of her occasional "graphic dreams". What convinced her it actually occurred was the defendant's subsequent warning not to tell her mother about it. The complainant could not say why this reality did not become evident when her mother spoke to her about the clothing found on the floor.

[12] Ms F. is married with two children. She confirmed that in July 2012, the complainant disclosed that the defendant had "touched her". This happened after an incident involving the defendant and TT's mother. The latter had been on Ms F.'s porch when the defendant joined them and told his partner to come home. TT's mother refused and the defendant "dragged" her away. Another male neighbour intervened and fought with the defendant. Once this event subsided, Ms F. saw the complainant standing at the end of the street. Since it was 11 PM, she called her over. The complainant asked if they could talk privately and disclosed that the defendant had touched her. Ms F. testified that when she asked TT how she had been touched, the latter said "her boobs and licked her down below".

[13] Ms F. told the complainant the police must be called. TT was frightened and said her mother and (natural) father did not know anything. Ms F. stated she would call police in the morning and did so after informing TT's mother. Ms F. confirmed that the complainant was aware she had been the victim of a serious sexual assault.

Similar Fact Evidence Application

[14] The Crown asserts that the defendant previously committed the following offences and that the details of them are admissible at this trial:

• 1978: indecent assault on a female
• 1980: indecent assault on a female
• 2000: sexual assault on a female
• 2002: sexual assault on a female
• 2004: sexual assault on two males

[15] It is the Crown's position that the defendant sexually assaulted TT, a young person, after finding himself alone with her and using coercion to make her participate and remain silent. The Crown claims that the evidence of the prior sexual offences will assist the court in determining if: (a) The actus reus of the offence was committed; (b) The defendant has a situational propensity to sexual assault young people he knows and is left alone with; (c) The defendant has a situational propensity to be unable to control his sexual desire when opportunity arises; and to rebut the defence of recent fabrication.

[16] In 1978, the defendant was found guilty of indecent assault on a female person in the British Columbia County Court. Two years later he was found guilty by the same court of indecently assaulting another female person. In this similar fact evidence application, the Crown sought to prove the details of these convictions by means of statements made by the defendant during a psychological assessment prepared at Milhaven Penitentiary in 2005. For the reasons that follow, it is not necessary to set out those details.

[17] On January 31, 2000 the defendant was convicted by Justice Morgan of the Ontario Court of Justice of sexually assaulting FL. He pled guilty to the charge. FL is the sister of JL, about whom more will be said below. The transcript of proceedings discloses the following: FL was the defendant's step-daughter. In the period between September and November 1999, the defendant molested FL in the family home while her mother was at work. He took her to his bedroom and told her to disrobe. He fondled her breasts and vagina and ejaculated while the victim played with his penis. FL was 13 years old at the time. After these acts were completed the defendant reminded the victim not tell anyone as she would be blamed and her mother would leave her.

[18] On July 26, 2002 the defendant was convicted by Justice Halikowski of the Ontario Court of Justice of sexually assaulting TH, a 16 year old female. He pled guilty to the charge. The transcript of proceedings discloses the following: The defendant was living in a rooming house that was also occupied by the boyfriend of TH. On one occasion the defendant followed TH from the residence and, while walking along the street, told her he "liked young girls and wanted to fuck her". He tried to kiss TH and after he was repelled, the defendant squeezed her breasts and buttocks, over her clothing.

[19] JL is now 24 years old. He testified that the defendant was his stepfather in the several years preceding his eleventh birthday. The family unit consisted of his mother and sister [i.e. FL referred to above], the defendant, and two boys who the biological sons of the defendant. According to LP, the following incident happened when he was nine or ten years old: One day, while his mother was at work and LP was in the living room of the family home, the defendant told him to remove his clothing. LP did as instructed because he was afraid of the defendant. The defendant inserted his penis into LP's mouth. He then placed LP's penis in his mouth. After these acts were completed, the defendant told LP to bend over and he put his penis in the boy's bum. LP testified that following this incident he "started acting out" with his step brother because he "thought it was okay and stopped doing it" when told otherwise.

[20] The defendant was convicted of sexually assaulting JL on March 9, 2004. At that proceeding, the defendant entered a plea of not guilty to the charge before Justice Minden of the Superior Court of Justice. The trial consisted of a statement of facts read by the Crown. That statement is consistent with the testimony of JL as set out above. The statement read by the Crown contains these additional facts; the defendant ejaculated when his penis was in JL's mouth and (2) after the defendant put his penis in JL's bum, the latter, at the invitation of the defendant, reciprocated that act. When the presiding judge asked if he contested the statement of facts, the defendant, through counsel, said no. When asked why there should not be a finding of guilt, defence counsel said he had no submissions. The defendant was sentenced accordingly. The statement of facts that formed the basis of this trial also included details of the defendant's sexual activity with CM, an eight year old boy. As already indicated, the defendant did not contest the statement of facts. However, although charged with sexually assaulting CM, he was not arraigned on that count or found guilty of it. For the reasons that follow it is not necessary to set out the details with respect to CM.

[21] In R. v. Handy, 2002 SCC 56, the Supreme Court of Canada set out a framework for analyzing the admissibility of similar fact or other discreditable conduct evidence. Such evidence is presumptively inadmissible and will only be admitted if the probative value of that evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception. In this regard, it is important to note that propensity reasoning in itself is not prohibited but to infer guilt merely because of a defendant's bad character is a "forbidden chain of reasoning". That is, evidence of general propensity or disposition is inadmissible. The onus is on the Crown to establish that the probative value of the proposed similar fact evidence outweighs its potential prejudice. The standard of proof is on a balance of probabilities. See Handy, supra, paragraphs 35, 36, 55 and 101.

[22] In assessing probative value, it is important to identify the "issue in question", as the probative value of the proposed similar fact evidence must be considered in the context of that issue. The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated. Probative value may be assessed by considering (i) the strength of the evidence, including the potential for collusion, (ii) identification of the issues in question; and (iii) similarities and dissimilarities between the facts charged and the similar fact evidence. See Handy, supra, at paragraphs 69–74, 102–136.

[23] Since the admissibility of similar fact evidence is dependent upon its probative value, its credibility and reliability is a factor that the trial judge must take into consideration. If the evidence does not meet the threshold of being reasonably capable of belief, it is potentially too prejudicial to be admitted. See Handy, supra at paragraph 134. In this regard, the Supreme Court of Canada has held that a prior conviction constitutes sufficient evidence upon which a trier of fact, on the trial proper, could conclude on a balance of probabilities that that a defendant was the perpetrator of the offence in question. See R. v. Jess, 2012 S.C.J. No. 21 at paragraph 47. Accordingly a transcript of those proceedings can be relied upon by the Crown to prove the underlying facts of the conviction.

[24] As already stated, the Crown sought to prove the facts of the defendant's 1978 and 1980 convictions through a statement he made during a psychological assessment. Mr. Ka-Hung Law, from the Millhaven Assessment Unit, testified that he recorded the statement in question. It is clear from his evidence that the defendant was told that if he participated in the assessment he could benefit with respect to classification in the jail, treatment programs, and parole. He was also told that if he did not participate, this fact would be brought to the attention of the parole board and taken into account in determining his release. The parties agree that Mr. Law was a person in authority for the purposes of the common law voluntariness rule. There can be no doubt the defendant made an informed decision to be interviewed. It is equally clear that his statement was induced by a promise of benefit and threat of harm. Accordingly, I excluded it from evidence. This means the Crown has not proven the details of the 1978 and 1980 convictions.

[25] I also conclude that the Crown has failed to prove the facts with respect to CM. Those facts were asserted by the Crown and not contested by the defendant but the court was not invited to make a finding with respect to those facts and did not do so. While it might be argued that the failure of the defendant to contest the facts is a mark of reliability, in the absence of any authority on point, I decline to so hold.

[26] I am confident the Crown has met its burden of proof with respect to the facts pertaining to the remaining three convictions. Indeed, Defence counsel does not dispute this with respect to JL. I come to the same conclusion with respect to FL and TH. The transcripts of the guilty pleas in those matters are in evidence before me and, on the authority of Jesse, are reliable. The next issue to be determined is whether they are admissible as similar fact evidence.

[27] In assessing the strength of the similar fact evidence another important factor to consider is collusion. This could arise, for example, if the complainant in this case had spoken to prior victims or was aware of the facts of those offences. I am not troubled by the possibility of collusion. There is nothing to suggest TT knows, or ever spoke to, any of the prior victims. Moreover, although she testified that the defendant had spent much time in jail and told her of a prior sexual assault on his niece, she did not know the details of that offence or his other convictions. She was not successfully challenged on this point and I have no hesitation in accepting her evidence.

[28] Since it is the improbability of a like result being repeated by mere chance that carries probative weight, the essence of the probative value is the likeness of the instance. The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence.

[29] In R v B.(L.), the Ontario Court of Appeal held that:

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. This stands to reason, particularly where there is nothing unusual about the sexual acts in question. In most circumstances, the fact that one complainant was kissed as compared to the other being fondled may not have a whole lot of significance. The allegations all pertain to acts of a sexual nature. In the same way, and again depending on the circumstances, the fact that assault occurred in the basement as opposed to the other in the bedroom may not be of consequence on the question of probative value. The different location may simply be attributable to a different opportunity for privacy. For example, in B. (C.R.), the similarities that the majority found to be sufficiently compelling essentially related to the context within which the assaults occurred and to what was distinctive about that context.

It is important to consider not only the acts themselves but all the circumstances in order to assess what similarities, if any, exist between the discreditable conduct and the alleged offence, and whether these similarities give the evidence probative value. Dissimilarities have to be considered in the same light in order to determine whether or not they detract from the probative value of the evidence.

[30] In B.(L.), supra, the court also explained what "prejudice" means in the context of similar fact evidence:

Professor Delisle defines the meaning of prejudice in this context succinctly as follows:

Prejudice in this context, of course, does not mean that the evidence might increase the chances of conviction but rather that the evidence might be improperly used by the trier of fact. It is one thing for evidence to operate unfortunately for an accused but it is quite another matter for the evidence to operate unfairly. The trier who learns of the accused's previous misconduct may view the accused as a bad man, one who deserves punishment regardless of his guilt of the instant offence and may be less critical of the evidence presently marshalled against him.

[31] In seeking to tender the facts of the defendant's prior convictions for sex offences, the Crown asks "How likely is it that multiple young people were sexually assaulted at the hands of the accused when circumstances presented themselves?" As already stated, the facts of three of the six cases have not been proven. In any event, the question posed by the Crown can lead to the forbidden chain of reasoning, that is, one based merely on bad character and general propensity. It is better to ask whether the probative value of the proposed similar fact evidence outweighs its potential prejudice, as these terms have been defined in Handy and B.(L.).

[32] In my opinion, the details underlying the defendant's convictions for sexually assaulting FL and JL are admissible as similar fact evidence. The context within which these offences were committed is strikingly similar to that in the present case. FL and JL are siblings and the young girl and boy were the step children of the defendant. He abused his position of trust to molest them while their mother was not present to protect them. In the case of FL, the defendant also warned her not to tell her mother by pointing out the adverse consequences. The facts of the present case reflect the same features; namely, the age of the complainant, her relationship with the defendant, opportunity, and coercion. TT is several years older than FL and JL but still a young person. Her relationship with the defendant was functionally the same, if not formally so. She reported being assaulted while her mother was drunk and asleep and told not to disclose the event for fear of hurting her mother. In these circumstances, the details of the defendant's convictions for sexually assaulting FL and JL are highly probative and to admit them as evidence does not make this trial unfair to the defendant. The same cannot be said with respect to the defendant's offences against TH. Although her age is similar to TT, the context was quite different; in particular, there was not a relationship of trust or coercion. The facts of that case are more prejudicial than probative and, as such, not admissible as evidence at this trial.

Conclusion

[33] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. Crown counsel submits that the testimony of TT, taken alone, meets this standard of proof. It is also asserted that, in any event, the similar fact evidence confirms the complainant's credibility and reliability. I do not accept the first submission.

[34] The Defence argues that the complainant's testimony cannot be safely relied upon. It is submitted that TT had motive to lie because the defendant's alcohol use was a bad influence on her mother, his affair with her mother ruined her parent's marriage, and he dragged her mother away from F. porch. Counsel added that this animus would be enhanced by the defendant's 'creepiness" in wearing women's clothing. I reject this argument; the examples relied upon were put to the complainant and her testimony persuades me she did not have a motive to fabricate allegations of misconduct. Indeed, such a purpose is inconsistent with her evidence that she initially thought the incident in question was a dream. Moreover, such a young woman, in the often awkward period of adolescence, would not readily fabricate and testify that the defendant told her a girlfriend said her "pussy stank".

[35] I am impressed with the complainant's candour and truthfulness. The reliability of her evidence is a separate issue. In this regard, I must consider the inconsistencies in her evidence and the possibility that TT sincerely believes something that she, in fact, dreamed.

[36] I am not troubled by the inconsistencies in the complainant's evidence. The Defence concedes that the prior statement that "[the defendant] licked me" and her trial testimony that "he tried to lick me" is not a "big difference". The contradiction between TT and Ms F. with respect to whether the defendant touched her breasts depends on my acceptance of Ms F.'s testimony on this point. Since the latter had consumed 12 beers, I cannot do so; what I can safely take from Ms F.'s evidence is that TT reported an incident that reminded her of a difficult childhood experience, with the result that she reported it to TT's mother and called police. However, the somewhat confusing account of how the complainant's clothes were removed and what was done with them presents a greater problem. So, too, does TT's testimony she was initially not certain if the events had really happened. Although I take comfort in the complainant's explanation that the reality was confirmed by the defendant's subsequent warning not to tell her mother, I am concerned that this did not arise when her mother spoke to her about the clothing found on the hallway floor.

[37] These observations are sufficient to raise a reasonable doubt about the reliability of the complainant's testimony. Accordingly, while I find her to be a credible witness, I could not find the defendant guilty on her evidence alone. What removes such a doubt is the similar fact evidence. As already stated, that evidence is highly probative; the context within which those offences were committed is strikingly similar to the present case. It cannot be said that this is mere coincidence. On this basis, I am confident in concluding that the complainant's testimony is both truthful and accurate.

Result

[38] The defendant is found guilty of the three offences. I invite submissions from counsel with respect to the applicability of R v Kienapple.

Released: December 13, 2012

Signed: "Justice J. De Filippis"