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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: 2014-11-14

Court File No.: Central East-Newmarket 4911-998-11-02850-00

Between:

Her Majesty the Queen

— AND —

[D.(J.)]

Before: Justice Peter C. West

Oral Submissions Heard on: July 9 & 10, 2014 & September 16, 2014

Ruling on Similar Fact Application: November 14, 2014

Counsel:

• Ms. A Barkin for the Crown
• Mr. A. Lerner for the accused [J. (D.)]

WEST J.:

Overview

[1] [J. (D.)] is charged with four counts of sexual assault and four counts of sexual interference between 2010 and 2011, involving his grandchildren, M.W., J.W. and N.A. and historical charges of gross indecency and indecent assault, between 1975 and 1979, on a male person, G.R. The Crown seeks count to count admissibility of what is submitted to be similar fact evidence as well as a prior conviction in 2000 against J.D., respecting a sexual assault and possession of child pornography involving M.A., the father of N.A.

[2] The Crown's evidence was heard between October 21, 2013 and October 31, 2013. The Crown called M.W.; J.W.; G.F., foster mother for M.W. and J.W.; D.W., Children's Aid worker for M.W. and J.W.; N.A.; M.A.; G.R.; P.C. Manzon and D.I., friend of G.R., rebuttal witness respecting allegation of recent fabrication.

[3] In July 2014 counsel started their oral submissions respecting admissibility of the similar fact evidence. On the second day of argument, during the defence submissions, I raised with counsel the advisability of postponing the argument until the completion of the case, as had been done in R. v. U.C., [2009] O.J. No. 1805 (Ont. C.A.) and R. v. M.E., [2011] O.J. No. 6177 (Ont. S.C., Hill J.). Both counsel agreed to deal with this issue in that fashion.

[4] On September 15, 2014, at the conclusion of the Crown's case, the defence requested that he complete his submissions as to the admissibility of the similar facts in relation to count to count and the evidence of discreditable conduct respecting the convictions registered against J.D. in 2000 relating to M.A., rather than waiting until the end of the case as he wanted to know my ruling prior to deciding whether to call evidence. I then heard submissions from the defence and Ms. Barkin made further brief submissions in reply but relied primarily on her written factum and oral submissions from July 9 and 10, 2014. After hearing counsel's submissions I reserved my ruling on the admissibility of the similar facts to November 14, 2014.

Factual Background

[5] In January 2011, M.W. and J.W., together with their sisters, S. and P., were in the care of CAS and living with a foster mother, G.F. and her husband. This arrangement had been in existence since the winter of 2010. The children would visit with their father, J.W. and their step-mother, L.W. on weekends. After such a visit, on January 30, 2011, while the children were seated at the kitchen table in G.F.'s kitchen, G.F. overheard J.W. say, "Granddad always likes to touch my dick or hang on to it, squeeze my dick. What's with that?" M.W. responded, "He does that to me too." Then P. said, "Oh, he's just trying to blush up to you." G.F. left the kitchen and contacted CAS to advise what she overheard.

[6] G.F. denied discussing with J.W. or M.W. the comments made by them at the kitchen table. G.F. admitted she told J.W. on the drive to the police station on February 3, 2011, "You have to remember that you have to tell the truth and be a big brother to N.A.." N.A. was J.W. and M.W.'s cousin. G.F. denied saying anything to either J.W. or M.W. about any allegations involving N.A.. G.F. admitted having a conversation at her house with L.W., who told her "N.A. was molested too." This discussion occurred a week or two after the kitchen table incident.

[7] G.F. testified she may have told J.W. and M.W. about her conversation with L.W. "long after" and she specifically told them to "just remember that you're a big brother to N.A." so they would know what she was referring to. This conversation likely occurred on a drive to the courthouse.

[8] On February 3, 2011, G.F. and her husband, C.F., first took J.W. and M.W. to the police station and she may have said to them, "Tell the officers what happened or what you told me." G.F. testified she does not know any details of the boys' allegations and has not asked them anything about the allegations as per the instructions of CAS.

[9] In cross-examination G.F. testified she talked to her husband about how this was not the first time these allegations arose and that there was an incident 12 years earlier involving J.D. Initially G.F. testified there was no way J.W. or M.W. could overhear what she spoke to her husband about but then agreed she could not be certain whether the boys overheard their conversations. She denied telling J.W. or M.W. that J.D. was a pedophile. G.F. agreed if she had spoken to the boys about their allegations she would be breaking CAS rules and would be fired as a foster parent.

[10] G.F. agreed P.'s comment; "He's just brushing up to you" could have meant 'you're lying.' She also agreed she told the police in her February 3, 2011 statement, "J.W. makes things up so I don't really put much stock in him saying this sort of stuff."

[11] D.W. was the CAS worker for the four W. children between the early fall 2010 and February 2011. He had arranged to get all four children together at G.F.'s house. He learned about the allegations from a report G.F. had filed with CAS. He arranged the two interviews with the police for M.W. and J.W. He was there for support but did not participate in the interviews. On February 3, 2011, both boys were anxious, exhibiting negative behaviour, being disruptive and wrestling one another in the police station waiting area. He did not engage in any discussions with the boys concerning the allegations. The boys were speaking to each other and he only asked questions to clarify some points. All four children came to the police station with the foster parents in the same van.

[12] D.W. recalled the boys talking to each other about being touched in the groin by their grandfather after J.W. was done his interview. He recalled M.W. saying "I didn't say anything, I didn't say anything" after his police interview and then saying something about it not being a big deal. When the boys were talking about the allegations in the waiting area, D.W. asked some clarifying questions, such as "Who is Missy?", when M.W. said the touching happened while he was playing on the computer at Missy's house. M.W. mentioned at the same time that the touching of his groin happened at his grandfather's house and on a trip to Florida. J.W. kept saying "It's not a big deal, it wasn't a big deal" while standing on a chair and gyrating his hips and making a circular motion with his hand.

[13] D.W. testified he never said to the boys J.D. was a pedophile or that J.D. had touched another boy in the past. D.W. made reference to J.W. saying that J.D. was gay in reference to a trip to Florida where his grandfather did not pay attention to the girls because he is gay. D.W. also confirmed M.W. made similar comments about his grandfather liking boys and not girls. D.W. testified the boys, when they were acting out in the police waiting room; they were saying loudly that "Grandpa touched our dick, what's the big deal." This was said loud enough so D.W. could hear it as well as the police officer at the front desk.

[14] D.W. testified he did not speak to either M.W. or J.W. about their allegations between the February 3 and February 7 interviews with the police. D.W. did not recall being involved in either of the interviews of the boys by the police. This was not an accurate recollection as D.W. was in the interview of both M.W. and J.W. on February 7, 2011.

Allegations of M.W.

[15] M.W. has lived in foster care since age five or six. He has three siblings, J., S. and P. They currently live in four separate foster homes. M.W. watched his first video-taped statement to the police, which he made on February 3, 2011. Some of what he told the police was not true. He was not telling the truth with respect to what he said about Grandpa D. He did not feel like telling anyone about the events when he gave this statement. M.W. told the police that J.W. had told him Grandpa D. had touched him but cannot recall exactly what J.W. said. A male police officer and D.W.'s female co-worker were present during this interview.

[16] M.W. gave a second statement to the police on February 7, 2011. He felt more comfortable with D.W., who was his CAS worker, being there and the police officer, Cecile Hammond. M.W. told the police Grandpa D. had touched him on two occasions. The first occasion was at his aunt, M.'s, house. It happened in front of the computer, located in the "game" room. When Grandpa D. touched his penis, everyone else was in the TV room by the kitchen. N.A. was present, sitting on Grandpa D.'s lap. M.W. was sitting on the right arm of the chair Grandpa D. was sitting on. Grandpa D. put his finger on M.W.'s penis, over his pants, and moving it in a circular motion for two to three minutes. Grandpa D. did not say anything during the touching. The touching stopped because M.W. moved away. While the touching was occurring M.W. felt scared and did not say anything.

[17] The second incident of touching occurred at M.W.'s father's house on a wooden couch with cushions, in a room with a TV and a computer. M.W. could not recall who was in the room when this happened. The touching was similar to the previous incident and happened for three minutes.

[18] M.W. did not recall the conversation between him and J.W. where he mentioned on the video where they discussed their grandfather doing this again. M.W. testified he never spoke to N.A. about Grandpa D. touching N.A. but he heard about it from G.F. after his February 7, 2011 interview.

[19] In cross-examination M.W. said Grandpa D. touched him at his aunt M.'s house on January 14, 2011. He agreed he had a conversation with J.W., during the week of January 16, 2011 about Grandpa D. touching his penis. They talked about how and where the touching occurred. He later agreed further details may have slipped out.

[20] M.W. testified he knew both times he was taken to the police station it was for him to talk about Grandpa D. touching his penis. J.W. told him about Grandpa D. touching his penis on January 30, 2011 before dinner in M.W.'s bedroom. In cross-examination M.W. testified the first incident was at his father's house and the second incident was at M's house. He changed this evidence when he was shown his testimony from the preliminary hearing. M.W. agreed he felt pressure to say things about Grandpa D.

[21] M.W. agreed J.W. might not have provided the details about where Grandpa D. had touched his penis; he found out from G.F. that Grandpa D. touched J.W. while watching a movie. M.W. agreed he told J.W. about both incidents that happened to him when they spoke around January 16, 2011, which is different from what he had previously told the Crown he said.

[22] M.W. admitted to lying and making up stories regularly. M.W. and J.W. made of lies together in the past to get people in trouble. M.W. confirmed he and J.W. had made up lies about their foster homes and as a result had to leave. M.W. agreed he lied for entertainment purposes or other reasons. M.W. agreed he lied to the police on February 3, 2011 but did not lie in his February 7, 2011 statement. M.W. testified he did not lie about Grandpa D. touching his penis but he did lie about seeing Grandpa D. touch his brother Macallum. M.W. testified he lied during the February 7 interview when he said Grandpa D. only touched him once. This was a conscious decision he made not to tell the truth during that interview.

[23] M.W. testified he never told his father nothing happened with Grandpa D. M.W. was shown his preliminary hearing testimony where he said he told his father he told the police on February 3 nothing happened because nothing had happened with Grandpa D. M.W. testified he was not telling the truth in his evidence at the preliminary hearing.

[24] M.W. said G.F. and D.W. were the two people he trusted the most in January/February 2011. He testified he was lying at the preliminary hearing when he said he told G.F. after the February 3 interview he told the police nothing happened with Grandpa D. because nothing had happened.

[25] M.W. agreed it was possible the incident on his father's couch may not have happened as he cannot remember it happening but he did remember it happening sometime before he went to his aunt M.'s house, within two weeks before. He agreed he does not remember being touched by Grandpa D. at his father's house because it may not have happened.

[26] M.W. agreed when he was sitting on the right arm of the chair at the computer it was unsteady and Grandpa D. was holding him around the waist and lower back so he did not fall off. He testified Grandpa D. had his arm all the way around him and D. put his finger on his penis and did a circular motion. He felt it happening a few times.

[27] M.W. agreed he lied to the police on February 7 when he said he did not know why he was there as he knew he was there to talk about Grandpa D. M.W. testified he told the police this because he was scared. M.W. was then shown his previous evidence where he testified he was not scared when he spoke to the police on both occasions.

[28] M.W. changed his evidence about talking to J.W. prior to the kitchen table incident on January 30. He agreed he changes his stories and lies.

[29] M.W. testified he told D.W., his CAS worker, on February 4, 2011 about being touched by D. prior to the February 7, 2011 interview.

[30] M.W. had testified at the preliminary hearing in answer to a question by Ms. Barkin that he just knew Grandpa D. touching him was not an accident but he could not explain how he knew. M.W. now testified he knew the touching was not an accident because that is what a pedophile w3ould do. He has heard at least two times before D. has done this and he knew it was on purpose because a normal human being would not do that.

[31] M.W. has heard D. called a pedophile by G.F., his aunt L.W. and his new foster mother, V.K.

[32] M.W. testified when he said during the preliminary hearing he had been touched by Grandpa D. on same weekend J.W. said he was touched, this was not accurate as it was two weeks before.

[33] When M.W. was referred to his February 7 police statement where he said Grandpa D. has also touched N.A. at the computer, this was something he heard from G.F. on February 3, 2011.

[34] M.W. testified he could not remember all the stories he and J.W. made up but he remembered they were about their father.

Allegations of J.W.

[35] J.W. knew why he was going to the police station on February 3, 2011, it was to discuss what he had said at the kitchen table. He did not say anything during that interview because he felt nervous. During the February 7 interview he knew what D.W. and the officer wanted him to talk about but he did not want to say anything.

[36] J.W. described sitting at the kitchen table in G.F.'s house and saying to M.W. that Grandpa D. touched his penis. M.W. said D. also touched him. The incident happened when he was at Grandpa D.'s for a sleepover on a Saturday night. They watched the movie in Grandpa D.'s and his partner, R.'s, bed. J.W. fell asleep half way through the movie. Before falling asleep Grandpa D. touched his penis. D. touched J.W.'s penis over his clothes in multiple circles. He cannot recall how many circles or how long it happened for. J.W. said he moved over closer to R. The touching stopped for a while but D. started touching his penis again in the same way as before, multiple times in a circular motion. He does not remember how it stopped as he fell asleep.

[37] When J.W. woke up in the morning, Grandpa D. was rubbing his back while J.W. was lying on his stomach. Nothing else happened. He did not tell his father or G.F. what happened. J.W. told his brother, M.W. at dinner that Grandpa D. had touched his penis.

[38] J.W. testified he never discussed what happened with M.W. or G.F. or D.W. The last time he spoke about it was at the preliminary hearing because he wanted to get it over with. He never spoke to N.A. about the incident.

[39] J.W. testified he saw Grandpa D. touching M.W. on the couch while they were watching a movie. J.W. was on the left of M.W. and Grandpa D. was on M.W.'s right. M.W. told J.W. about the touching after J.W. told M.W. at the kitchen table. M.W. told J.W. that Grandpa D. touched M.W.'s penis on the couch. M.W. gave no further details. This incident occurred before Grandpa D. touched J.W. J.W. saw Grandpa D. touching M.W.'s penis by making circles over M.W.'s pants.

[40] In cross-examination J.W. agreed there are no other times Grandpa D. touched his penis.

[41] J.W. agreed he and M.W. made up stories in the past. J.W. agrees he no longer talks to his father and L.W. because of some lies he made up about them. J.W. testified M.W. never told him about Grandpa D. touching him. He testified he lied at the preliminary hearing when he said M.W. had told him Grandpa D. had touched M.W.'s penis. J.W. maintained he did not discuss with M.W. that he saw Grandpa D. touch M.W.'s penis while sitting on the couch and when he testified at the preliminary hearing he did discuss with M.W. what he saw Grandpa D. doing he was lying. Later in his evidence at the trial, J.W. admitted M.W. told J.W. he saw Grandpa D. touch M.W.'s penis while sitting on the couch and when he testified at the preliminary hearing he did discuss with M.W. what he saw Grandpa D. doing he was lying.

[42] J.W. did agreed he and M.W. had discussions about this case, including what people said about Grandpa D. being gay and liking boys. These conversations happened before they went to the police in February 2011 and these were things he heard from G.F., L.W. and M.W. J.W. heard G.F. say things about D and what was happening in court. G.F. talked to J.W. about what happened in court after he testified at the preliminary hearing.

[43] J.W. agreed M.W. told him about Grandpa D. touching M.W.'s penis before he went to Grandpa D.'s for the sleepover. He agreed M.W. told him this before J.W. blurted out his allegation at the kitchen table. J.W. testified he and M.W. discussed D. touching his penis in a circular motion clockwise. They discussed the details.

[44] J.W. testified he did disruptive things so he would be sent back to live with his father. He agreed making up a story about Grandpa D. would make him go back to his father's place.

[45] J.W. agreed he said Grandpa D. had touched his penis during a trip to Florida while he was in the police waiting room. J.W. agreed this was a lie because Grandpa D. never went to Florida on this trip. J.W. agreed this was all made up.

Allegations of N.A.

[46] N.A. is J.D.'s grandson. J.D.'s daughter, M., is N.A.'s mother. N.A.'s father is M.A. who lives in Calgary. In 2000, J.D. was convicted of possession of child pornography and sexual assault in respect of M.A. N.A. had not seen his father for many years.

[47] N.A. provided a video-taped police statement on February 10, 2011. N.A. had been to his grandfather's house on a number of occasions for sleepovers. N.A. has had and continues to have eczema on different parts of his body. In his statement he told the police he generally has eczema on his hands and feet. When N.A. slept over at Grandpa D.'s house, his grandfather put eczema cream on his body every night. N.A. would be naked when Grandpa D. put the eczema cream on his body. He later told the Crown he had a shirt on when Grandpa D. put eczema cream on him.

[48] At the preliminary inquiry N.A. was asked by the Crown, "Okay, did you ever put cream on your penis because of eczema?" and his answer was yes. The reason N.A. told the Crown yes is because he had dry skin and eczema on his penis.

[49] In cross-examination N.A. agreed when he went to Grandpa D.'s house for the sleepover his body was white with eczema. At the preliminary hearing N.A. testified he did put cream on his penis for eczema. He testified at the trial when he went to Grandpa D.'s for the sleepover he had eczema on his penis. N.A. agreed when Grandpa D. put the eczema cream on his penis Grandpa D said, "N.A. this is how you're supposed to put it on." N.A. agreed he had eczema all over his body at that time, including his penis. Grandpa D. put eczema cream all over his body, especially his hands.

[50] In re-examination N.A. testified he does not remember having eczema on his penis. In his police statement he told the police where he puts the cream "on my body but my grandpa puts it on my private part. I don't know why?" He was asked by the Crown, "Can you tell us what your best memory is of whether or not you had eczema on your penis at that time?" and N.A. responded, "I could've but if I – if I didn't, he might've been doing it because just to make sure it doesn't happen, just doesn't…"

[51] N.A. would take baths because he was scared of showers. N.A. testified he did not know how to properly clean his penis, no one ever taught him how to wash himself. On one of the sleepovers Grandpa D.'s partner, R. cut N.A.'s hair. N.A. had hair everywhere so his grandfather took him in the shower to wash it off. Grandpa D. had underwear on but N.A. was naked. Grandpa D. touched N.A.'s penis in the shower. The Crown asked N.A. at the preliminary hearing, "What made you think your grandfather was trying to show you how to clean your penis?" and his answer was, "Because he was telling me how to – how to and stuff."

[52] In cross-examination N.A. agreed he told the police in his statement he did not know how to wash his penis at the time. He agreed his mom, M., had asked Grandpa D. to show N.A. how to properly clean his penis. The only time Grandpa D. touched N.A.'s penis in the shower was when he showed N.A. how to wash it. Grandpa D did not rub N.A.'s penis, he showed N.A. how to properly clean it. N.A. testified in re-examination that Grandpa D. showed him how to roll back his penis and how to clean it properly.

[53] N.A. did not feel uncomfortable when Grandpa D. touched his penis because his mom had asked Grandpa D. to show N.A. how to wash it.

[54] When Grandpa D touched N.A.'s penis, either to put cream on it because of eczema or the time he show N.A. how to properly wash his penis, Grandpa D. only touched his penis for a few seconds. N.A. testified when he had the sleepover at Grandpa D.'s house he was in pain from the eczema because his skin was very dry and uncomfortable. He did not have any cream with him so he told Grandpa D. and they stopped on their way to Grandpa D.'s house to get some cream.

[55] N.A. agreed when he testified at the preliminary hearing he was very upset he could not see his grandfather anymore. He was upset he could not go up to Grandpa D. to talk to him. After the preliminary hearing he saw his father M.A., who told N.A. he was testifying against J.D. because J.D. had touched him in a sexual way too, many years before. N.A. testified this upset him a great deal. N.A. agreed his feelings for his grandfather changed for the worse as a result of what M.A. said Grandpa D. did to him. M.A. told N.A. Grandpa D. was a "very bad man". N.A. testified his feelings about Grandpa D. changed because his father, M.A., told N.A. it was recurring, which was not right. In re-examination N.A. testified his father told him J.D. spiked his drink, he fell asleep and J.D. touched him sexually.

[56] N.A. also testified when he told his mother what happened with Grandpa D. his aunt L.W. was present. L.W. became very upset and said Grandpa D. should not have washed N.A.'s penis or put eczema cream on N.A.'s penis.

Allegations of M.A.

[57] M.A. was the boyfriend of M., J.D.'s daughter. In 1999 he was charged as a youth with a number of offences. J.D.'s second wife, G.W., acted as M.A.'s surety and he resided in J.D.'s and G.W.'s home in the basement. M. and L., J.D.'s daughters from his marriage to L.K. also resided in the house. There was only a bed in the basement, which M.A, slept in. There were some boxes neatly stacked underneath the stairwell about five feet from the bed.

[58] M.A. testified when he woke up in the mornings he would find his blankets off his bed and his boxers pulled down. He usually slept with his blankets wrapped around him. One night, before falling asleep, M.A. noticed a red light coming from the boxes and upon investigating he discovered a video camera pointed towards the bed. He removed a tape from the camera and spoke to M. about what he had found. The next day he and M. found 4 or 5 tapes in a locked drawer in J.D.'s dresser. The videos showed M.A. sleeping and periodic masturbation.

[59] Sometime in August 1999 was the final occasion M.A. slept in the basement. This was about two weeks after finding the videos. He had been out with his friends and J.D. earlier in the evening and he had been drinking. He testified he did not recall going to bed. He woke up to someone licking his anus and touching his genitals with their hand. He was not wearing boxers. He jumped out of the bed and tried to turn on the overhead light but the bulb had been removed. It was dark in the basement and he could not see who was in the basement with him. He ran upstairs and went to M.'s room. She was asleep and he had to wake her up. He kissed her and left the house on his bike. He never returned to D.'s house. He never saw who sexually assaulted him but it had to be J.D.

[60] J.D. pleaded guilty to possession of pornography and pleaded not guilty to the charge of sexual assault. After a trial J.D. was found guilty of sexual assault.

[61] M.A. did not complain to the police immediately after he was assaulted. It was M.A.'s sister P. who called the police. This was after J.D. had contacted the police regarding M.A. and P. attempting to blackmail him respecting the videos.

[62] M.A. agreed he was not heavily involved with his children after his break-up and divorce with M. He was working in Ottawa and Calgary for approximately three years. He was upset M. was allowing his children to see J.D. and would ask them if J.D. ever touched them. His children had never told him J.D. had touched them because if they had he would probably have assaulted J.D.

[63] M.A. testified that his son N.A. has psoriasis, a skin condition that he gets on his legs and hands. N.A. has a prescription cream for the condition. M.A. never saw N.A. with eczema on his penis or buttocks and he never saw N.A. scratching in these areas.

[64] M.A. testified his son is not circumcised. M.A. has observed his son pull the skin back to clean his penis. N.A. knew how to do this because he and M. had taught him to do this.

[65] M.A. denied telling N.A. anything about what J.D. did to him. M.A. told his son that D. was a dangerous man and this should never have happened. He told N.A. this was why he got made at N.A.'s mother and why they split up. M.A. had difficulties with J.D. being a pedophile and being around his kids.

[66] In cross-examination M.A. initially testified he did not talk to N.A. about why he was in court. He then agreed he may have talked about something but he was not completely sure. He did not get into detail. After being confronted with N.A.'s evidence, M.A. finally agreed it is possible he may have told his son, N.A., why he was in court testifying.

Allegations of G.R.

[67] G.R. is the brother of L.K. She was 10 years older than G.R. and she passed away three to four years ago. L.K. married J.D. when she was in university.

[68] When G.R. was 15 or 16 years of age his sister was engaged to J.D. They were all supposed to go to St. Thomas on Sunday. His sister, L., had gone ahead with a friend on Friday night and G.R. was to go on Sunday with J.D. They were staying at J.D.'s parents' house in Aurora. J.D. was four years and a few months older than G.R. There was a pull out couch, which G.R. and J.D. got into to watch TV. J.D. offered G.R. some alcohol and he had some playboy penthouse magazines. G.R. turned them down. They watched TV and G.R. fell asleep.

[69] G.R. woke up in the middle of the night and saw J.D. on the other side of the bed. When G.R. woke up the next day J.D. was rubbing his back and then J.D. slipped his hands underneath G.R.'s underwear and touched his penis in a masturbating fashion for 15 to 30 seconds. G.R. jumped out of the bed and went into the kitchen. He could see J.D. in a mirror while he was in the kitchen and he was masturbating underneath the blankets. After a minute, J.D. got out of the bed and went to the washroom. Five minutes later J.D. came to the kitchen and asked G.R. what he wanted for breakfast.

[70] G.R. asked his friend, B.T., to come the next evening to stay so nothing would happen. He told B.T. what happened but B.T. passed away eight to ten years ago. He also told another friend, D.I., about what happened. G.R. never confronted J.D. about what happened. G.R. never told his sister, L.K. what J.D. had done because she was engaged to J.D. and was happy. When G.R. was in his mid-twenties he told his mother about what had happened and his mother told L.K.

[71] His sister finally approached him about this incident. About eight to ten years after he spoke to L.K. about what happened, L.K. initiated a police investigation. G.R. provided a statement to the police for the first time in 1997. This statement has been lost or destroyed. No charges were laid as there was not sufficient evidence.

[72] G.R. provided a statement to Det. Hammond on April 14, 2011. He agreed in cross-examination nothing in this statement is verifiable. G.R. did not remember that J.D. and his sister were going through a divorce in 1997. He did know his sister was ordered to make payments to J.D. G.R. did not recall if he or his sister contacted the police in 1997.

[73] G.R. is certain J.D. and L.K. were engaged and not married at the time of the incident.

[74] G.R. agreed in his statement to Det. Hammond in April 2011 he said J.D. started to "fondle" him and he used the word "Masturbate" to describe what J.D. was doing to himself.

[75] G.R. knew B.T. came on Saturday night to stay at J.D.'s house. D.I. was not at the house and he discussed the incident with D.I. sometime after it happened. G.R. agreed it could have been years later. He told B.T. but did not provide him any details. G.R. agreed he did not tell anyone about what happened at that time.

[76] G.R. did not change his plans after the incident as he drove for two hours with J.D. to St. Thomas and agreed it is possible he stayed with J.D. on Sunday night in St. Thomas. G.R. agreed before the alleged incident J.D. did not make any other sexual advances. Further after the incident there was not a lot of awkwardness between them.

[77] G.R. cannot recall the details of what he told the police in 1997. G.R. agreed he did not talk to L.K. about the incident until after she divorced J.D., sometime after 1987.

Law Respecting Similar Fact Evidence

[78] The inadmissibility of general propensity or disposition evidence in a criminal trial has long been established in Canadian law. The general exclusionary rule recognizes that such evidence, although potentially relevant to the ultimate issue of guilt or innocence, poses grave dangers to a fair trial: see R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.) (at paras. 31-36). Such evidence has the great potential "for prejudice, distraction and time consumption" and these disadvantages will usually outweigh its probative value. (see Handy, para. 37) The serious potential prejudice arising from the admission of general propensity evidence encompasses both moral prejudice (stigma of "bad personhood") and reasoning prejudice (potential confusion and distraction of the trial judge or jury from the actual charge against the accused) (see Handy, para. 100).

[79] Nonetheless, courts have recognized that in exceptional cases, evidence of prior discreditable conduct "may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse" (see Handy, para 41). In order to be admissible, the similarities between the matter in issue and the proposed similar fact evidence would have to be "such that absent collaboration, it would be an affront to common sense to conclude that the similarities were due to coincidence" (see Handy, para. 41). 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 similar fact evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.

[80] In R. v. R.B., [2003] O.J. No. 4589 (Ont. C.A.), Simmons J.A., for the majority, at para. 48, summarized the highlights of the main components of the Handy analytic framework as follows:

• Evidence of other discreditable conduct is presumptively inadmissible;

• Evidence of other discreditable conduct may be admitted where the prosecution establishes, on a balance of probabilities, "that in the context of a particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception";

• Probative value may be assessed in the following manner:

  • By considering the strength of the similar fact evidence, including the extent to which the evidence can be proven and any allegations of collusion;
  • By identifying the "issue in question" and its relative importance in the particular trial;
  • By identifying the factors that connect or distinguish the similar fact evidence to or from the facts alleged in the charge and the degree of connection required to make the proposed evidence admissible.

• If the similar fact evidence "is not properly capable of supporting the inferences sought by the Crown, generally, the analysis need go no further;

• Potential prejudice to the accused may be assessed in the following:

  • By considering the potential for "moral prejudice" against the accused, meaning the risk of convicting the accused because he is a "bad person" rather than based on proof that he committed the offence.
  • By considering the potential for "reasoning prejudice" against the accused, meaning the risk of distracting or confusing the jury, or of undue consumption of time, and the danger that the jury may have difficulty disentangling the subject matter of the charges from the similar fact evidence.

[81] In R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, where the issue in question was, in part, whether some of the alleged incidents occurred, Binnie J. concluded, at para. 48, that, "a persuasive degree of connection between the discreditable conduct evidence and the offence charged" is required. As this issue arises in this case, it is my view the Crown must establish a persuasive degree of connection as between the conduct alleged in the various counts in the information for the similar fact evidence to be admissible. Further, the Crown must establish a persuasive degree of connection as between the discreditable conduct relating to Mr. D.'s convictions and the charges before the court for the similar fact evidence to be admissible. It is important however that a judge not engage in a mathematical calculation of the similarities and dissimilarities of the evidence, without regard to their qualitative force. The trial judge must be mindful of Binnie J.'s caution in Shearing, supra, at para. 60:

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

[82] At paras. 76-80 of Handy, Binnie J. discussed the necessity and importance of identifying the degree of connection between the discreditable conduct evidence and the offence charged:

76 The principal driver of probative value in a case such as this is the connectedness (or nexus) that is established between the similar fact evidence and the offences alleged, particularly where the connections reveal a "degree of distinctiveness or uniqueness" (B. (C.R.), supra, at p. 735). As stated by Cory J. in Arp, supra, at para. 48:

... where similar fact evidence is adduced to prove a fact in issue, in order to be admissible, the trial judge should evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established. Only then will the evidence have sufficient probative value to be admitted.

77 Thus in Arp, where the issue was identification, Cory J. cited at para. 43 R. v. Scopelliti (1981), 63 C.C.C. (2d) 481 (Ont. C.A.), where Martin J.A. observed that evidence of propensity on the issue of identification is not admissible "unless the propensity is so highly distinctive or unique as to constitute a signature" (p. 496). Martin J.A. made the propensity point again in his lecture on "Similar Fact Evidence" published in [1984] Spec. Lect. L.S.U.C. 1, at pp. 9-10, in speaking of the Moors Murderer case (R. v. Straffen, [1952] 2 Q.B. 911):

Although evidence is not admissible to show a propensity to commit crimes, or even crimes of a particular class, evidence of a propensity to commit a particular crime in a peculiar and distinctive way was admissible and sufficient to identify [Straffen] as the killer of the deceased.

78 The issue in the present case is not identification but the actus reus of the offence. The point is not that the degree of similarity in such a case must be higher or lower than in an identification case. The point is that the issue is different, and the drivers of cogency in relation to the desired inferences will therefore not be the same. As Grange J.A. correctly pointed out 20 years ago in R. v. Carpenter (1982), 142 D.L.R. (3d) 237 (Ont. C.A.), at p. 244:

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.

[83] Justice Hill in R. v. M.E., supra, at para. 189, held that the admissibility of similar fact evidence, and specifically the balance of probative value versus prejudicial effect:

…depends on identification of the purpose or material issue for which the evidence is sought to be admitted - issue identification is an important control. As the proponent of admissibility, the Crown must establish "the specific factual issue which the evidence is probative of the improbability of coincidence": R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at para. 72.

[84] Consequently, it is important for the Crown to identify the purpose or issues the similar fact evidence is probative to prove. Probative value can only be determined in light of the purpose for which the evidence is proffered (See R. v. Handy, supra, at para. 74). In Handy, Binnie J., at paras. 115-116, cautioned against framing the "issue in question" too broadly or merely in terms of credibility:

…Care must be taken not to allow too broad a gateway for the admission of propensity evidence or, as it is sometimes put, to allow it to bear too much of the burden of the Crown's case [citation omitted]. Credibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence.

Anything that blackens the character of an accused may, as a by-product, enhance the credibility of a complainant. Identification of credibility as the "issue in question" may, unless circumscribed, risk the admission of evidence of nothing more than general disposition ("bad personhood").

[85] Simmons J.A., in R. v. R.B., supra, at para. 54 held that one of the purposes of the Crown identifying the issues in question " is to assist in determining the degree of connection necessary to make the discreditable conduct evidence admissible."

[86] In R. v. Handy, supra, at paras. 81-82, the Supreme Court held that "the decided cases suggest the need to pay close attention to similarities in character, proximity in time and frequency of occurrence". The Court observed as follows:

82 The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves. Factors connecting the similar facts to the circumstances set out in the charge include:

(1) Proximity in time of the similar acts: [citations omitted];

(2) Extent to which the other acts are similar in detail to the charged conduct: [citations omitted];

(3) Number of occurrences of the similar acts: [citations omitted];

(4) Circumstances surrounding or relating to the similar acts [citations omitted];

(5) Any distinctive feature(s) unifying the incidents: [citations omitted];

(6) Intervening events: [citations omitted];

(7) Any other factor which would tend to support or rebut the underlying unity of the similar acts.

[87] It is important to note as well that the degree of connection must rise above generic similarities between the proposed count to count similar acts. In R. v. R.B., supra, at para. 61 and 64, Simmons J.A. held:

In describing the similarities as generic, I mean that the identified similarities describe general, rather than specific, aspects of the conduct and contain limited detail, with the result that the identified similarities are likely to be present in most incidents of sexual touching involving children.

The risk in relying primarily on generic similarities to support an inference that the actus reus occurred is twofold. One, the initial inference arising from the prior conduct becomes so general, that it approaches bad personhood. Two, because of their non-specific character, generic similarities may mask underlying dissimilarities that could be important in a particular case.

[88] As discussed above the serious potential prejudice arising from the admission of general propensity evidence encompasses both moral prejudice (stigma of "bad personhood") and reasoning prejudice (potential confusion and distraction of the trial judge or jury from the actual charge against the accused). Reasoning prejudice and moral prejudice raise legitimate concerns in a jury trial, but less so in a judge-alone trial, as this is. A further consideration in assessing the potential prejudicial effect of the proposed similar fact evidence is the majority of the proposed similar fact evidence relates to the factual allegations underlying the counts in the information. The evidence relating to each of the counts was led by the Crown as part of its case against Mr. D., notwithstanding the Crown's application to admit the evidence count to count as similar fact. There was only one witness, M.A., where the proposed similar fact evidence is extrinsic to the charges before the court, which related to convictions registered against Mr. D. in 2000.

[89] In R. v. T.B., 2009 ONCA 177, [2009] O.J. No. 751 (Ont. C.A.), Borins J.A., for the court, held:

As trial judges are presumed to know the law and the proper and improper uses of evidence, it seems counterintuitive that similar fact evidence could be excluded in a non-jury trial based on the trial judge's determination that the evidence would confuse him or induce him to put more weight on it than is logically justified.

[90] R. v. MacCormack, 2009 ONCA 72, [2009] O.J. No. 302 (Ont. C.A.), dealt with a multi-count indictment where the Crown was seeking count to count admissibility as similar facts before a judge without a jury. At para. 66, Watt J.A. said:

The test for the admissibility of evidence of similar acts offered to prove identity is the same whether the alleged similar acts are extrinsic to the counts in the indictment, or contained in other counts of the same indictment: Arp, [1998] 3 S.C.R. 339, at para. 51. The same test notwithstanding, some of the factors relevant to an assessment of prejudice may have an attenuated influence in cases in which the similar acts are restricted to other counts in a multi-count indictment. It may be all the more so where the case is tried by judge sitting without a jury.

[91] Watt J.A. added at paras. 68 and 69:

This case involves the invocation of similar act principles across counts in a multi-count indictment. The evidence relating to each count is relevant to and admissible in proof of the allegation contained in that count. Each incident is of equivalent gravity and of minimal inflammatory potential. This is not a case, in other words, in which conduct extrinsic to the crimes alleged in the indictment is enlisted as evidence of similar acts to prove what is alleged, and lugs with it inflammatory claims of greater gravity or moral depravity.

In large measure, the practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extend beyond the counts of a multi-count indictment reduce significantly, if not to the vanishing point, the virus of reasoning prejudice. The judge is less likely than a jury to be distracted by a focus on similar acts. No additional time is required to adduce the evidence of similar acts because they are co-extensive with the evidence that is relevant, material and properly admissible on the individual counts. The only additional time required is that needed for the argument on admissibility at the end of the trial.

[92] Similarly, in R. v. Cresswell, 2009 ONCA 95, [2009] O.J. No. 363 (Ont. C.A.), at paras. 9 and 10, the court dealt with an appeal of a trial judge's ruling that the evidence on each count was admissible as similar fact evidence on all the other counts. This was a judge-alone trial and the Ontario Court of Appeal made the following observations:

We note as well that Handy states that admissibility is conditioned by the issue to which the evidence is directed. Here, the evidence went not to identity, where distinctive features amounting to a "signature" may be required, but rather to the actus reus, where less cogent similarities may render the evidence admissible.

Finally, we observe that this was a judge alone trial on a multi-count indictment. There was no severance application and it was inevitable that the judge deciding the case would hear all of the evidence. While this, of course, does not by itself render the evidence admissible across all counts, it significantly reduces the risk of prejudice. Moreover, in his reasons, the trial judge properly identified the permitted use of similar fact evidence and cautioned himself against prohibited lines of reasoning.

[93] Based on the above cases, prejudice becomes less significant in a judge-alone trial and where the similar fact evidence is predominantly count to count. The issue then is whether "the evidence regarding other counts [has] sufficient probative value to support a legitimate chain of reasoning furnishing evidence of any individual count" (R. v. T.B., supra, at para. 34). This requires an analysis of the degree of connection between the counts in the information to properly assess the probative value of the similar fact evidence.

[94] In assessing the probative value of similar fact evidence, the "existence of collusion rebuts the premise on which admissibility depends" (see Handy, supra, at para. 110) as the probity of such evidence arises from the improbability of two or more witnesses independently or coincidentally giving the same evidence: R. v. U.C., [2009] O.J. No. 1805 (Ont. C.A.), at para. 40 and Handy, supra, at para. 41, citing Sopinka J. dissenting in R. v. B. (C.R.), [1990] S.C.J. No. 31, at para. 72:

The fact that the alleged similar facts had common characteristics with the acts charged, could render them admissible, and, therefore, supportive of the evidence of the complainant. In order to be admissible, however, it would be necessary to conclude that the similarities were such that absent collaboration, it would be an affront to common sense to suggest that the similarities were due to coincidence… [Emphasis added]

[95] Where there is some evidence of actual collusion, or at least an air of reality to it, the Crown must satisfy the trier of law as a condition precedent, on a balance of probabilities, that the evidence of similar acts is not tainted with collusion: Handy, supra, at para. 112 and R. v. M.E., supra, at para. 198.

[96] In R. v. M.E., supra, at paras. 199-202, Hill J. states:

On occasion, the facts of a case may raise a concern about "innocent collusion or influencing" or the possibility of "innocent tainting": R. v. M.B. (2011), 2011 ONCA 76, 267 C.C.C. (3d) 72 (Ont. C.A.), at paras. 18-20; R. v. Baggio, 2011 ONCA 80, at paras. 1-5; R. v. J.F. (2003), 177 C.C.C. (3d) 1 (Ont. C.A.), at para. 77.

To the extent that the jurisprudence dealing with collusion speaks of collusion "or some other form of tainting" (U.C., at para. 40; B.(T.), at para. 22), or of other non-collusive conduct (B.(R.) (2005), at para. 5 (no evidence complainants colluded with each other "or even discussed the appellant's misconduct with each other")), the court, in deliberating upon the admissibility issue, should be alive to instances of witness contamination, deliberate or innocent, of a sufficiently serious nature as to threaten the true existence of coincidence.

The evidence may disclose limited contact between complainants as in R. v. L.G., 2009 ONCA 895, at para. 5. Opportunity for collusion may well be the context "in many cases alleging sexual abuse with multiple complainants" (Handy, at para. 111) and communication among sibling complainants is "almost inevitable": R. v. Shearing (2002), 2002 SCC 58, 165 C.C.C. (3d) 225 (S.C.C.), at para. 43. But "[t]he issue is concoction or collaboration, not contact. If the evidence amounts to no more than opportunity, it will usually be best left to the jury": Handy, at para. 112; R. v. Dueck, 2011 SKCA 45, at paras. 51-8.

Accordingly, there may exist the opportunity for collusion, or the potential for collusion, without the evidentiary record disclosing an air of reality to collusion having in fact transpired. Where the trial judge is satisfied that the reliability of the evidence is not jeopardized by collusion or similar tainting, the trier(s) of fact will then decide the ultimate worth of the evidence: Handy, at para. 112; U.C., at para. 19. At trial, of course, it is "not incumbent on the defence to prove collusion": Handy, at para. 112.

[97] In my view, a judge cannot properly assess "the objective improbability of coincidence" without addressing the issue of whether the apparent "coincidence" is in fact the product of collusion. The judge is obligated to consider whether the Crown has proven on a balance of probabilities that the evidence was not tainted by collusion (see Shearing, supra, at para. 41; R. v. Burnie, 2013 ONCA 112, [2013] O.J. No. 747 (Ont. C.A.) at paras. 37-40; and R. v. F. (J.) (2003), 177 C.C.C.(3d) 1(Ont. C.A.) at para. 86).

[98] Where the "similar fact evidence is admitted and there is evidence of the possibility of collusion, which falls short of tainting the evidence so as to render it inadmissible," the trial judge, where he is the trier of fact, must "instruct himself to consider the possibility of collusion in his assessment of what effect to give the similar fact evidence in his ultimate decision on the guilt of the defendant on the whole of the evidence" (see Burnie, supra, at para. 42).

[99] Finally, the credibility of the similar fact evidence is a factor to be considered by the trial judge in assessing its probative value in determining whether it is admissible. In Handy, supra, at para. 134, Binnie J. held:

In the usual course, frailties in the evidence would be left to the trier of fact, in this case the jury. However, where admissibility is bound up with, and dependent upon, probative value, the credibility of the similar fact evidence is a factor that the trial judge, exercising his or her gatekeeper function is, in my view, entitled to take into consideration.

[100] In R. v. J.W., 2013 ONCA 89, [2013] O.J. No. 654 (Ont. C.A.), Weiler J.A. held:

…in exercising a gatekeeper function, there are times where the trial judge is entitled to take into account the credibility of the evidence. Where the question of admissibility and probative value are totally bound up with one another, the evidence may be too prejudicial to be admitted unless it is reasonably capable of belief: R. v. Handy, at para. 134. Furthermore, in a judge alone trial where the trial judge, as the trier of fact, must make the ultimate determination as to the weight to be given to the evidence that may have been influenced by the sharing of information, weighing the evidence at the admissibility stage may occasion no substantial wrong or miscarriage of justice in the end result. [Emphasis added]

Position of the Parties

[101] In her written submissions, the Crown argues the proposed similar fact evidence should be admitted as it would:

i) support the truth of each complainant's allegation;

ii) negate the suggestion of innocent association; and

iii) demonstrate a specific pattern of behaviour on behalf of the defendant.

[102] Ms. Barkin added two additional purposes for which she sought the admissibility of the similar fact evidence during her oral submissions; namely, to rebut a defence that because of the risk of detection the acts could not have occurred and to demonstrate a sexual passion for young males by Mr. D. beyond coincidence.

[103] Ms. Barkin argued in her written submissions the similar fact evidence relating count to count and the extrinsic evidence surrounding M.A.'s conviction meet the non-exhaustive list of factors set out in Handy, supra, at paras. 81-82 to demonstrate connectedness or nexus.

[104] The defence argues the Crown completely ignored the evidence of collusion and tainting in respect of the evidence of M.W.; J.W. and N.A. There is evidence M.W. and J.W. discussed the allegations prior to making disclosure. Both M.W. and J.W. initially denied discussing the allegations and when confronted with earlier testimony admit to discussing details of their allegations. J.W. admitted making up a story about J.D. touching him on a trip to Florida, which never happened because J.D. was not on the trip. M.W. testified G.F., his foster mother, spoke about J.D. being a pedophile and discussed the allegations relating to N.A. Both boys admit G.F., their aunt L.W. and their new foster mother discussed with them that J.D. was a pedophile and had done similar things previously. In cross-examination, M.W. admitted to lying to police about observing J.D. touch his brother, M. Further, with respect to M.W. and J.W., they both admitted to making up lies with each other in order to get people in trouble. It is the defence position M.W.'s and J.W.'s credibility is highly suspect and their evidence should not be accepted.

[105] The defence further argues as a result of M.W. and J.W. discussing with each other, in detail, their allegations as to J.D.'s conduct, their evidence is exactly the same and quite specific as to the nature of the touching; being a circular motion by J.D. with his hand or finger on their penis over their clothes.

[106] N.A. testified his father, M.A., told him J.D. touched M.A. as well. According to N.A., M.A. told N.A. Grandpa D. was a bad man as he had done the same thing previously to M.A. Initially M.A. denied talking to N.A. about J.D. touching him; however, in cross-examination M.A. admitted discussing with N.A. his allegation of J.D. touching him. It is the defence position J.D.'s conduct relating to N.A. was innocent in nature and not engaged in for a sexual purpose. At the preliminary hearing, in answer to questions by the Crown, N.A. testified he previously had eczema on his penis and he agreed with those answers at the trial. He also testified at the preliminary hearing and trial that he had eczema on his body, including his penis, when he went to his grandfather's for a sleepover. He told his grandfather he was in pain and uncomfortable and his grandfather bought eczema cream, which he put on N.A.'s body, including his penis. He also testified his mother asked Grandpa D. to show N.A. how to properly clean his penis in the shower, which his grandfather did. The defence argues N.A.'s evidence in-chief changed at the trial as a result of his speaking to his father, M.A. and after N.A. heard how upset his aunt L.W. was concerning what J.D. had done. Ultimately N.A. adopted the evidence he gave during the preliminary hearing as being true. Consequently, it is the defence position there is evidence of collusion and tainting respecting N.A. as well.

[107] Ms. Barkin submits the Crown only bears the burden of satisfying the judge the similar fact evidence is not tainted by collusion if there is evidence of collusion or at least an air of reality The Crown argues there is no evidence of collusion nor is there an air of reality to the defence submission there is collusion or tainting respecting M.W., J.W. and N.A.

[108] The defence also argues the allegations involving M.A. are separated by 11 to 12 years from the allegations involving M.W; J.W. and N.A. and are not proximate in time. M.A.'s allegations are far more serious and significantly different when compared to the allegations of M.W.; J.W. and N.A. Further, M.A. was 17 when J.D. sexually assaulted him and much older than M.W; J.W and N.A. It is the defense position there is no connectedness or nexus between M.A.'s allegations and J.D.'s three grandson's allegations having regard to the factors set out in Handy, supra, at paras. 81-82.

[109] Further, the defence argued the allegations involving G.R. are separated by 32 to 36 years from the allegations involving M.W; J.W. and N.A. and are clearly not proximate in time. The circumstances surrounding the allegations relating to G.R. are significantly different from the allegations of J.D.'s grandsons. One significant difference is related to the respective ages of J.D. and G.R. at the time of G.R.'s allegation. J.D. was 4 years and a few months older than G.R., who was between 15 and 16. The allegations surrounding J.D.'s grandsons are alleged to have occurred when he was in his 60s and they were between 9 and 11 years of age. Finally, the relationship between J.D. and his grandsons is completely different from his relationship with his future brother-in-law as were the alleged circumstances in which the allegations arose. It is the defence position that for these reasons there is no connectedness or nexus between G.R.'s allegations and M.W.'s; J.W.'s and N.A.'s allegations and G.R.'s allegations should not be admitted as similar facts.

[110] In oral submissions, Ms. Barkin argued in the alternative that M.A.'s allegations should be admitted as similar fact evidence respecting G.R. only and M.W.; J.W. and N.A. should be admitted as similar fact evidence on a count to count basis.

Analysis

[111] I recognize that moral prejudice and reasoning prejudice are less of a concern in a judge-alone trial and where the Crown applies for the admission of similar facts respecting a multi-count information (see R. v. T.B., supra; and R. v. MacCormack, supra) where the evidence of each complainant's allegations will be heard by the trial judge as part of the Crown's case. I am of the view this does end the inquiry. It is still necessary for the Crown to establish that the evidence of each complainant's allegations should be admitted as similar fact evidence to address the material issues identified. This addresses the necessity of the evidence being probative to a fact in issue, which "assists in determining the degree of connection necessary to make the discreditable conduct evidence admissible." (see R. v. R.B., supra, at para. 54).

[112] The only extrinsic evidence sought to be adduced by the Crown as similar fact evidence is the evidence of M.A. Consequently, I will deal with the admissibility of M.A. as similar fact evidence first. The Crown seeks to introduce the similar fact evidence to address the following material issues set out in paragraphs 102 and 103, supra. I am mindful of the caution set out in Handy and R.B. concerning the Crown framing the "issue in question" too broadly or merely in terms of credibility. Further, I recognize that the degree of connection must rise above generic similarities. My task; however, is not to simply add up the similarities and dissimilarities to determine a net balance.

[113] Applying the factors set out in Handy, supra, at paragraph 82 to the evidence of M.A. I make the following observations concerning the degree of connection as between his allegations and those of the charges before the court:

i. M.A.'s allegation is not proximate in time to any of the charges before the court. With respect to the allegations of G.R., there is a 19 to 22 year gap between when G.R.'s allegation occurs and M.A.'s allegation. With respect to M.W.; J.W. and N.A. there is an 11 to 12 year gap. Ms. Barkin, in an attempt to address the gap as it relates to M.W., J.W. and N.A., argues in the alternative that M.A.'s evidence be admitted as similar fact evidence respecting G.R. only and the three grandchildren's evidence be admitted as similar fact evidence in respect of each of their allegations. In my view, this mischaracterizes the significance of the gaps between G.R.'s allegations to M.A.'s allegations and the grandchildren's allegations to M.A.'s allegations. There is no temporal connection between M.A.'s allegations and the alleged offences.

ii. M.A.'s allegations are considerably more serious that any of the allegations of the complainants respecting the charges before the court. J.D. was convicted of sexually assaulting M.A. over a period of time, on a number of occasions, M.A. would wake up to discover the blankets were off his bed despite his practice of wrapping himself in them; his boxers had been pulled down or removed; to finally M.A. discovering J.D. licking his anus and directly fondling his penis skin on skin. In addition, J.D. pleaded guilty to video-taping, over an extended period of time, which created 4 or 5 video tapes, depicting M.A. sleeping and masturbating. With respect to M.W. and J.W., they allege J.D. touched their penises over their clothing for a matter of seconds in separate incidents. With respect to N.A., he alleges J.D. bathed him in the shower and showed him how to properly wash is penis at the request of N.A.'s mother, M. and on two occasions J.D. applied eczema cream all over his body, including his penis. With respect to G.R., he alleges J.D. put his hand underneath G.R.'s underwear and fondled G.R.'s penis for several seconds until G.R. jumped off the fold out sofa bed. In my view, the acts in relation to M.A. are in no way "similar in detail" to the acts alleged to have been committed in respect of M.W., J.W., N.A. or G.R.

iii. The circumstances surrounding the conduct relating to M.A. is very different from the other complainants' allegations. The conduct related to M.A. extends over an extended period of time and is committed in a very different situation, where M.A. is sleeping by himself, is being video-taped and there is an available inference he was sexually assaulted on numerous occasions. J.D. is clearly in a position of trust as it relates to his grandchildren. In my view, J.D. was not in a position of trust in respect of M.A. His relationship with M.A. is substantially different from that of his relationship with his grandchildren and his future brother-in-law. The age difference between J.D. and M.A., as opposed to J.D.'s age difference with M.W., J.W., N.A. and G.R., is also a significant difference.

iv. There are no significant feature(s) unifying the incidents. The ages of the complainants, the relationship between J.D. and the complainants and the nature of the conduct in respect of each complainant demonstrate significant differences between the conduct relating to M.A. I do not agree with the Crown's characterization of what she terms "distinctive features unifying the incidents." In my view, the majority of the distinctive features submitted by the Crown do not rise above generic similarities common in sexual assaults involving children.

v. The substantial passage of time between the incidents involving M.A. and the other complainants' allegations amount, in my view, to an intervening event. There is no continuing course of conduct demonstrated by the different incidents involving the different complainants.

[114] It is my view with respect to similar fact evidence involving M.A. the Crown has failed to establish on a balance of probabilities this evidence is relevant and probative to the issues she has identified. The "principal driver of probative value" is the "connectedness (or nexus) that is established between the similar fact evidence [M.A] and the offences alleged" (see Handy, supra, para. 76), particularly where the connection reveal a "degree of distinctiveness or uniqueness" (see R. v. (C.R.), [1990] 1 S.C.R. 717, at p. 735). As referred to previously in these reasons, Cory J. in R. v. Arp, [1998] 3 S.C.R. 339, at para. 48, held:

... where similar fact evidence is adduced to prove a fact in issue, in order to be admissible, the trial judge should evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established. Only then will the evidence have sufficient probative value to be admitted.

[115] In dealing with the material issues identified by Ms. Barkin: the evidence of M.A. in no way assists in negating the suggestion of innocent association given the very unique circumstances outlined above, which bear no similarity to the offences alleged; the evidence of M.A. does not reflect a specific pattern of behaviour on behalf of J.D.; the evidence of M.A. is not relevant to rebut the possible defence that because of the risk of detection the acts could not have occurred; and finally it is my view the final material issue described by Ms. Barkin; namely, to demonstrate a sexual passion for young males by J.D., is nothing more than propensity reasoning, which is not available when the evidence of M.A. is not sufficiently similar to the offences charged.

[116] In my view, the evidence of M.A. does not meet the test for admission of similar fact evidence as there is no connectedness or nexus to the offences alleged. Therefore, the Crown's application with respect to M.A.'s evidence is dismissed.

[117] It is my view, the evidence of G.R. relating to the counts 9 and 10 in the information is not admissible as similar fact evidence respecting the offences alleged by M.W., J.W. and N.A. for several reasons.

[118] There are significant dissimilarities between G.R.'s allegations and the other offences charged. The only similarity between G.R.'s evidence and the other offences relates to the generic similarity of J.D. touching someone's penis, but this is where the similarity ends. As I have indicated above, the relationship between J.D. and M.W., J.W. and N.A. (grandfather in a position of trust) is completely different from the relationship that existed between J.D. and G.R. (G.R. was J.D.'s future brother-in-law). The age difference between J.D. and the complainants is significantly different. J.D. is only 4 years and a few months older than G.R. The incident recounted by G.R. occurred when he was 13-16 years of age. At the time of the allegations involving G.R., J.D. was himself a teenager or, at most, a young man of 20. J.D. was in his 60s when he is alleged to have touched M.W., J.W. and N.A., who were between the ages of nine and eleven years. The allegations of M.W. and J.W. involve J.D. touching them over their clothes whereas G.R.'s allegation involves J.D. putting his hand underneath G.R.'s underwear with skin on skin touching of G.R.'s penis. The circumstances surrounding the allegations of G.R. are substantially different from the circumstances alleged by N.A., who testified his mother asked his grandfather, in N.A.'s presence, to show N.A. how to properly clean his uncircumcised penis in the shower. Further, N.A. suffered from eczema/psoriasis, which caused him pain. On the occasions his grandfather applied eczema cream, when he was staying over for sleepovers, he testified he was in pain and his grandfather purchased eczema cream to put on his body. N.A. testified he may or may not have had eczema in the area of his penis when his grandfather applied eczema cream in that area. In my view these are significant dissimilarities which cannot be ignored.

[119] There is no temporal connection between G.R.'s allegations and those of M.W., J.W. and N.A. In fact, the acts are separated by 32 to 36 years.

[120] There are numerous intervening events between the acts involving G.R. and the other complainants, the most significant being J.D.'s conviction for possession of child pornography relating to his video-taping M.A., while M.A. was sleeping or masturbating and J.D. sexually assaulting M.A., while M.A. was sleeping. The evidence disclosed after this conviction J.D. recognized he was a gay man; he divorced his second wife and entered into a common law relationship with his male partner, R, who he was living with at the time of the alleged offences involving M.W., J.W. and N.A. and who he currently lives with.

[121] It is my view with respect to similar fact evidence involving G.R. the Crown has failed to establish on a balance of probabilities this evidence is relevant and probative to the issues she has identified. I make the same comments I made dismissing the Crown's application to admit M.A.'s evidence as similar fact evidence.

[122] In my view, the evidence of G.R. does not meet the test for admission of similar fact evidence as there is no connectedness or nexus to the other offences alleged. Therefore, the Crown's application with respect to G.R.'s evidence is dismissed.

[123] With respect to the evidence of M.W. and J.W., it is my view there is direct evidence of collusion between these two brothers or at the very least, I find there is an air of reality of collusion between M.W. and J.W. and the Crown has failed to establish on a balance of probabilities that their evidence has not been tainted by collusion. I make this finding based on the following admissions by M.W. and J.W. during their testimony.

i. In examination-in-chief M.W. testified he did not recall a conversation he had with J.W. about Grandpa D. touching J.W., which he told the police about in his second video-taped interview. In cross-examination, he agreed he had a conversation during the week of January 16, 2011 with J.W. about M.W.'s allegation that Grandpa D. touched his penis the week before. M.W. testified he and J.W. talked about where and how M.W. was touched. He agreed it might have slipped out later the details of Grandpa D. sitting at a computer with N.A. on his lap and M.W. sitting on the right arm of the chair. Later in his cross-examination, M.W. testified he first talked to his brother, J.W., about Grandpa D. touching J.W. when they were in M.W.'s room before dinner. He admitted he was not telling the truth earlier in his testimony when he testified he and J.W. talked about Grandpa D. touching them a week and a half before January 30. He agreed he was changing his story to fit what he thought was best.

ii. M.W. agreed he talked with J.W. about J.W.'s allegation that Grandpa D. touched his penis prior to the dinner on January 30 where J.W. blurted out that Grandpa D. touched his "dick". He testified he found out later from G.F. that J.W. was touched while watching a movie. M.W. testified after J.W. told M.W. Grandpa D. touched his penis, J.W. told M.W. not to say anything because J.W. was "going to blurt it out."

iii. M.W. testified he was not sure if the incident he described happening on the couch at his father's house actually happened. He really did not remember that incident. He did not remember the details. J.W. testified he saw Grandpa D. touch M.W. on the penis on the couch in his father's house and he talked to M.W. about what he said he saw.

iv. J.W. agreed he testified at the preliminary inquiry he heard M.W. say Grandpa D. had touched his penis at his dad's house but at the trial he said this was not true. This was something he saw happen to M.W. months before he had the sleepover at Grandpa D.'s house just before January 30, 2011. J.W. testified he was lying at the preliminary inquiry when he said he and M.W. talked about Grandpa D. touching M.W. on the couch. He was adamant he had never spoken to M.W. about what he saw. Later in his evidence at the trial, J.W. admitted M.W. told J.W. he saw Grandpa D. touch M.W.'s penis while sitting on the couch and when he testified at the preliminary hearing he did discuss with M.W. what he saw Grandpa D. doing he was lying.

[124] Both M.W. and J.W. initially denied discussing anything about their grandfather touching them inappropriately with each other. As they were questioned further their evidence changed dramatically where they admitted to discussing the details of their allegations down to the specific manner in which they say their grandfather touched their penises over their clothing: "in a circular motion".

[125] Further, I find there is evidence of tainting as a result of conversations M.W. had with his foster mother, G.F., his aunt, L.W. and his new foster mother, V.K. who advised him Grandpa D. had done this before and was a pedophile. M.W. also testified G.F. advised M.W. Grandpa D. had touched his cousin, N.A.'s penis. M.W. testified he felt a lot of pressure to say something happened with Grandpa D.

[126] The evidence of tainting also relates to J.W. In cross-examination J.W. agreed he discussed with M.W. what other people have said about J.D. He agreed he heard Grandpa D. is gay and that he likes boys. He's heard other people say Grandpa D. was a pedophile. He heard these things from G.F. and L.W. He agreed he had had conversations with G.F. after he testified at the preliminary inquiry and what she knew about what happened in court.

[127] At the preliminary hearing M.W. testified he was unable to explain to the Crown why he knew Grandpa D. touching his penis was not an accident. At the trial in cross-examination he testified he could now explain why he knew the touching was not accidental. M.W. testified a normal person would not put his arm around someone and touch their penis:

M.W.: That's what a pedophile would do. That's – that's exactly what he is. He did it – he did it at – at least, I've heard, two times before. He would do it again.

A. Lerner: Okay. So, you've heard from other people that he's done this before.

M.W.: Yes.

A. Lerner: So, in your mind, it's obvious that it was on purpose because you've heard other people say that he's done it before, is that what you're telling us?

M.W.: No.

A. Lerner: Right. And Ms. Barkin had asked you last year at the preliminary inquiry 'how do you know that it was on purpose and that it wasn't an accident?' You couldn't tell us then why, do you agree with me? You couldn't tell us back then why?

M.W.: Yes, I couldn't.

A. Lerner: But today you can tell us.

M.W.: Yeah.

A. Lerner: And the reason why it was obvious to you that it was on purpose was because he's a pedophile, because he's done it to other people.

M.W.: No. It's because a normal human being wouldn't just touch someone's penis like that. It's not normal for a normal human being to do that. It's something a pedophile would do and that's – that's what he is and I – I told you that.

A. Lerner: You've heard other people call him a pedophile, right? You've…

M.W.: Yes.

A. Lerner: …heard that word used about him.

M.W.: Yes.

A. Lerner: Okay and you've heard that more than one time.

M.W.: Yes.

A. Lerner: And that's why you're using that word to describe it.

M.W.: Mm—hmm.

A. Lerner: You've heard G.F. use that word?

M.W.: Mm—hmm. Yeah.

A. Lerner: You've heard D.W use that word?

M.W.: Yeah

A. Lerner: You've heard L., his daughter, use that word?

M.W.: Yeah.

A. Lerner: Who else did you hear use that word about him?

M.W.: My foster mom.

A. Lerner: Which one? The new one?

M.W.: Yeah.

A. Lerner: You've heard all these people talk about Grandpa D. being a pedophile?

M.W.: Yes.

A. Lerner: And that's why you know today that's what he did because he's a pedophile and that's why he did it on purpose, is that your answer?

M.W.: Yes.

[128] M.W. also testified he told the police he heard that Grandpa D. did it to his cousin, N.A., at the computer at his house. He was told this by G.F., his foster mom. He spoke to G.F. after being to the police station on February 3, 2011. She told him that J.D. touched N.A.'s penis too. In his February 3, 2011 interview, M.W. said to the police nothing happened with Grandpa D. This changed when he gave his second statement on February 7, 2011 after he spoke with G.F. about N.A.

[129] I also have significant concerns about the credibility of both M.W. and J.W. respecting their allegations against J.D. Examples of these concerns arise from the following evidence:

i. Both M.W. and J.W. agree they made up stories and lies regularly about people to get what they wanted; they made up stories and lies about foster parents because they wanted to be moved to a different foster home. M.W. and J.W. testified they both wanted to live with their father, J.W., in January 2011 and did not want to live with G.F., their foster mother, anymore. M.W. testified he made up stories for entertainment purposes and other reasons. Both M.W. and J.W. testified they had not talked to or seen their father, J.W., for over a year because of lies they told about him. J.W. admitted to telling lies with M.W. about both his father, J.W. and L.W., his step mom and as a result had not talked to them for over a year.

ii. M.W. and J.W. agreed that they are very close, they are tight.

iii. J.W. initially denied speaking to M.W. about Grandpa D. touching J.W.'s penis or Grandpa D. touching M.W.'s penis. J.W. was adamant in his denials and testified he lied at the preliminary inquiry when he said they had talked about Grandpa D. touching them. Yet towards the end of the cross-examination J.W. completely changed his evidence again admitting he and M.W. had discussed in detail what they each said Grandpa D. had done to them. J.W. admitted he did tell M.W. he saw Grandpa D. touch M.W.'s penis while they were sitting on their dad's couch. He agreed they both discussed with each other Grandpa D. touched their penises by doing a circular motion with his hand or finger.

iv. M.W. agreed he would change his story in order to suit his needs. M.W. agreed there were occasions during the preliminary hearing he lied (see paragraph 123(i), supra). J.W. also agreed in cross-examination he would change his story in order for it to make sense. This is something he does regularly and is pretty good at it.

v. M.W. admitted he lied about seeing Grandpa D. touch M., another brother. J.W. admitted he lied about Grandpa D. touching his penis on a family trip to Florida. He agreed this did not happen because Grandpa D. never came with the family to Florida.

[130] In Handy, supra, at para. 110, the Supreme Court held the "existence of collusion rebuts the premise on which admissibility depends" as the probity of similar fact evidence arises from the improbability of two or more witnesses independently or coincidentally giving the same evidence. I find from the evidence set out above the discussions between M.W. and his brother, J.W., were not the type of discussions that have been described as "almost inevitable" between sibling complainants. Their initial denial of having discussed their allegations with each other or other family members to finally admitting they discussed the details on numerous occasions, both before and after the outburst by J.W. on January 30, 2011 at the dinner table, lead me to conclude they did collude with each. A telling comment by M.W. was his evidence that he and J.W. had discussed with each other that Grandpa D. had touched each of their penises and J.W. told M.W not to say anything because he wanted to "blurt it out." This was discussed prior to J.W. blurting out "granddad always likes to touch my dick or hang on to it, squeeze my dick. What's with that?" and M.W. adding, "He does that to me too." As I indicated earlier I find the Crown has not established on a balance of probabilities that M.W. and J.W.'s evidence is not tainted by collusion. This finding alone would result in my dismissing the Crown's application for M.W.'s and J.W's evidence to be used as similar fact evidence in respect of each other's allegations or any other complainant's allegations.

[131] There are additional reasons for dismissing the Crown's application to admit M.W.'s evidence and J.W's evidence as similar fact evidence; namely, the evidence of tainting of M.W.'s evidence and J.W.'s evidence by G.F., D.W., L.W. and M.W.'s new foster mom, V.K. who advised both boys of previous allegations, the allegations respecting their cousin, N.A. and labelling J.D. as a pedophile who is gay and likes boys. There is no doubt this tainting impacted the evidence of both M.W. and J.W., as I have set out previously. It is clear to me from the excerpt of the cross-examination of M.W., set out above, his evidence was significantly affected by the information he was provided.

[132] A further reason for dismissing the Crown's application relates to the credibility of the similar fact evidence. I find both M.W. and J.W. were not credible witnesses, who admitted repeatedly to making up stories and lies about people to get them into trouble or get what M.W. and J.W. wanted to happen. I have set out some of the many inconsistencies in their evidence and the numerous admissions by both of lying to the police and to the Court respecting their statements and evidence. There were many additional examples in their testimony which I have not reproduced or referred to. They admitted to making up allegations about J.D. committing sexual assaults which were untrue: J.W. alleged Grandpa D. touched his penis in Florida on a family trip that J.D. was not present on and M.W. initially alleged he saw Grandpa D. touch N.A.'s penis and then changing this allegation to seeing Grandpa D. touch another brother M.'s penis, both allegations were untrue.

[133] Finally, although the allegations relating to N.A., are proximate in time to the allegations of M.W. and J.W. and J.D. is clearly in a position of trust in relation to all three of his grandsons as their grandfather, there are significant dissimilarities relating to the circumstances surrounding N.A.'s allegations. It is my view the specific acts themselves are completely dissimilar and there are no distinctive features unifying the incidents. It is my view, based on the evidence from N.A., J.D.'s act of demonstrating and showing N.A. how to properly wash his penis at the request of N.A.'s mother, M., is not a sexual assault. Further, N.A.'s evidence at the preliminary inquiry was unequivocal, both in examination-in-chief and cross-examination; he had eczema on his penis at different times. Further, he testified at the preliminary in cross-examination he had eczema at the time he went to grandfather's for the sleepover, he told his grandfather he was in pain and uncomfortable and his grandfather bought eczema cream. N.A. adopted his evidence from the preliminary inquiry that he had eczema all over his body, including his penis. His grandfather put the cream where N.A. had the eczema. N.A. agreed his grandfather only put the cream where N.A. had eczema. He adopted and agreed with his evidence at the preliminary during his cross-examination at the trial. He resiled somewhat from his evidence at the preliminary on re-examination; however, it was clear to me that his father, M.A., had tainted N.A.'s evidence because M.A. discussed in detail his own allegations and told his son, Grandpa D. was a very bad man who had done this previously. It was clear to me there was a significant change in N.A.'s attitude towards his grandfather from the preliminary hearing to the trial. For all of these reasons, it is my view the Crown has not established on a balance of probabilities the probative value of admitting N.A.'s evidence as similar fact evidence in respect of M.W.'s and J.W's evidence.

[134] Consequently, the Crown's application to admit similar fact evidence is dismissed.

Released: November 14, 2014

Signed: "Justice Peter C. West"

[1] 2004 SCC 69, [2004] 3 S.C.R. 503, (S.C.C.) affirming majority decision, dismissing Crown appeal and confirming new trial ordered.

[2] Abella J. refers to the Ontario Court of Appeal's judgment in R. v. K.(C.P.) (2002), 171 C.C.C. (3d) 173.

[3] Transcript of trial proceedings, October 24, 2013, at pp. 93-94.