WARNING

The court hearing this matter directs that the following notice 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.: Not specified

Date: November 15, 2012

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

C.P.

Before: Justice J. M. Grossman

Heard on: February 23, 24, 27 and April 2, 2012

Ruling delivered on: November 15, 2012

Counsel:

• D. DeSantis, Counsel for the Crown
• Y. S. Rahamim, Counsel for the Accused

Decision

Grossman, J.:

[1] C.P. is charged with two alleged offences of sexual assault and sexual interference in relation to L.P. sometime between March 1 and April 8, 2011.

[2] The Crown has served Notice seeking to admit evidence of prior discreditable conduct.

[3] The trial of these matters was delayed half day to address certain procedural issues resulting in the agreement of Crown and Defence counsel to proceed with the Crown's Application by way of a blended voir dire.

[4] It was agreed I would make a ruling on the Application before putting Mr. C.P. to his election whether to call any defence evidence.

[5] The Crown called the complainant, L.P., to testify. Thereafter, I heard evidence from S.P. and P.M., sisters of L.P.

[6] I am invited by Crown counsel to consider that the evidence of S.P. and P.M. discloses similar acts by Mr. C.P. as those alleged by the complainant, L.P. and that this similar fact evidence is admissible as its probative value outweighs its prejudicial effect.

[7] Counsel for Mr. C.P. argues the evidence of S.P. and P.M. does not disclose similar acts by Mr. C.P. as those alleged by the complainant, L.P., and is therefore not admissible as its prejudicial effect outweighs its probative value.

Evidence

[8] The evidence of L.P. relates that C.P. is her father. On consent, a video-taped statement was admitted pursuant to Section 715.1 of the Criminal Code. This is Exhibit 1 at this trial.

[9] During the course of her interview, Ms. L.P. related her father asked her to have sex with him particularly on different occasions when her step-mother was not at home. She refused on each occasion.

[10] She further described an incident where Mr. C.P. again requested to have sex with her, then hugged her and turned her around bending her over. He then rubbed his penis on her buttocks for about a minute before stopping. He gave her sixty dollars, she said.

[11] P.M. related incidents of a sexual nature involving Mr. C.P., her stepfather. She testified he talked to her in an inappropriate sexual way and related how he held her close and she could feel the imprint of his private area. She said he tried to have sex with her on many occasions.

[12] S.P. stated Mr. C.P. offered to pay her $50.00 if she would satisfy him.

Legal Framework for Similar Fact Evidence

[13] The similar fact evidence rule has been summarized in the Ontario Court of Appeal decision in R. v. L.B., [1997] O.J. No. 3042; 116 C.C.C. (3d) 481 wherein Charron J.A. stated at paragraph 8:

"In a nutshell, the similar fact evidence rule can be stated as follows: evidence of discreditable conduct of the accused, sought to be introduced by the prosecution, will be inadmissible except when its probative value outweighs its prejudicial effect."

[14] The onus is on the prosecution. In the Supreme Court of Canada decision of R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57; 61 O.R. (3d) 414; 164 C.C.C. (3d) 481, Binnie J. stated at paragraph 55 as follows:

"55 Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception."

[15] The case law is plentiful. The Supreme Court of Canada summarized the law of similar fact evidence in R. v. B. (C.R.), [1990] 1 S.C.R. 717; 55 C.C.C. (3d) 1 at paragraph 31 where McLachlin J. (as she then was) stated as follows:

"31 This review of the jurisprudence leads me to the following conclusions as to the law of similar fact evidence as it now stands in Canada. The analysis of whether the evidence in question is admissible must begin with the recognition of the general exclusionary rule against evidence going merely to disposition. As affirmed in Boardman and reiterated by this Court in Guay, Cloutier, Morris, Morin and D. (L.E.), evidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule, inadmissible. Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value of the proposed evidence outweighs its prejudicial effect. In a case such as the present, where the similar fact evidence sought to be adduced is prosecution evidence of a morally repugnant act committed by the accused, the potential prejudice is great and the probative value of the evidence must be high indeed to permit its reception. The judge must consider such factors as the degree of distinctiveness or uniqueness between the similar fact evidence and the offences alleged against the accused, as well as the connection, if any, of the evidence to issues other than propensity, to the end of determining whether, in the context of the case before him, the probative value of the evidence outweighs its potential prejudice and justifies its reception."

[16] It therefore becomes necessary in balancing the probative value with the prejudicial effect, to consider the degree of similarity between the conduct or acts under consideration. The conduct need not be strikingly similar to warrant admission.

[17] In R. v. Arp, [1998] 3 S.C.R. 339; 129 C.C.C. (3d) 321, Cory J. stated at paragraph 44 as follows:

"44 Because similar fact evidence is admitted on the basis of an objective improbability of coincidence, the evidence necessarily derives its probative value from the degree of similarity between the acts under consideration. The probative value must, of course, significantly outweigh the prejudice to the accused for the evidence to be admissible. See B. (C.R.), supra. However, the majority in B. (C.R.), at pp. 732‑33, rejected the proposition that the evidence must show a "striking similarity" between the acts in question in order for the evidence to have the requisite probative value. I agree that the requirement of "striking similarity" needs to be qualified. This point is carefully made in R. v. P., [1991] 3 All E.R. 337 (H.L.), where the accused was charged with the rape of both his daughters and with committing incest with them. The counts were tried together, and the evidence of both daughters was admitted in relation to each count to prove the commission of the crime (at p. 348):

When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it, notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include 'striking similarity' in the manner in which the crime is committed, . . . the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle. [Emphasis added.]

Since the evidence of both girls described a prolonged course of conduct involving the use of force and general domination, the circumstances, taken together, gave strong probative force to the evidence of one in respect of the other, notwithstanding that the manner of the commission of the alleged crimes did not disclose a "striking similarity"."

Analysis of Similarity

[18] Issues of importance in assessing whether to admit similar fact evidence are relevance and materiality. Credibility is an issue that penetrates many trials. It may lead to a decision on guilt or innocence. It may be argued that similar acts of discreditable conduct related by S.P. and P.M. enhance the reliability of L.P.'s evidence since their evidence is similar with respect to the alleged conduct of the accused in requesting sex from each of them.

[19] There are issues of similarity in the relationship of the accused. He is either the biological father or step-father of the three girls. He requested sex of each of them while in their teens and offered to pay money to S.P and L.P. for sexual favours.

Analysis of Collusion

[20] On the other hand, I cannot overlook the possibility of collusion which is a factor to be considered on the issue of admissibility.

[21] In Handy (supra), Binnie J. stated at paragraph 110:

"Collusion is a factor, yes, but more than that it is a crucial factor because the existence of collusion rebuts the premise on which admissibility depends."

[22] The evidence discloses opportunity for collusion in that P.M., S.P and L.P. were in contact with each other on the way to the subway station and later that evening, at the home of A.M.. They were able to collectively share information. The backdrop to this possibility is the underlying dislike or possible enmity towards the accused for prior conduct after the death of their biological mother.

[23] It is not uncommon to find "opportunity" as a feature in cases alleging sexual abuse with multiple complainants. Contact amongst complainants is not rare.

[24] But there must be more. The evidence discloses not just opportunity but the additional component of common dislike for the accused and his new wife. Taken together, it creates an "air of reality" to the allegations of collusion mindful it is not incumbent on the defence to prove collusion. The onus remains with the Crown to satisfy the Court that the probative value of the proffered evidence outweighs its prejudicial effect.

[25] I cannot overlook the language of the Courts when reference is made to "suspected" collusion or "potential" collusion or an "air of reality" to the allegations. (See R. v. Handy, supra, paragraphs 110, 111 and 112.)

Discretionary Balancing

[26] I also cannot overlook the remarks of McLachlin J. (as she then was) in R. v. B. (C.R.), supra, at paragraph 29 in relation to the issue of weight.

"29 The difficulty of the trial judge's task and the amount of discretion entrusted to him or her is great. As Forbes, op. cit., puts it at pp. 54-55:

A judge presented with similar facts for the prosecution has to exercise an extraordinary complex of duties and powers. First he has to assess not only the relevance but also the weight of the disputed evidence, although the latter task is normally one for the jury. Second, he must somehow amalgamate relevance and weight to arrive at "probative value". Third, and with due regard to the exclusory presumption, he has to outweigh that probative value, in some rough balance if [sic] imponderables, against any prejudice which the evidence is likely to excite in the jurors' minds.

"The relative weight of proof and prejudice vary infinitely from one case to another and the opinion of a particular judge must depend on the impression the evidence makes upon him in the light of his experience and his own sense of what is fair. It is inevitable that some cases are so close to the borderline that different judges will take different views upon them, and it is, therefore the type of case in which this court will hesitate long to disturb a ruling of the trial judge. . . . (T)he matter in issue is to be determined very largely by intuitive means. . . ."

Where a trial judge has properly addressed these concerns and, after weighing the evidence and its potential prejudice, arrived at a conclusion as to its admissibility, appellate courts will not lightly intervene."

[27] I have been alerted to certain areas of evidence which give rise to consideration of material inconsistencies and to issues of credibility.

[28] This is one of those cases that is close to the borderline. Mindful of the remarks in R. v. B. (C.R.), supra, I have considered relevance and weight of the disputed evidence in determining probative value. My impression of the evidence has contributed to my assessment.

Conclusion

[29] Having considered the relevant factors in balancing probative value with prejudicial effect, I am not persuaded the probative value outweighs its prejudicial effect.

[30] The proposed evidence of prior discreditable conduct is not admitted.

Date: November 15, 2012

Signed: "Justice Jack M. Grossman"