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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2015-01-23

Court File No.: Halton 13-2896

Between:

Her Majesty the Queen

— AND —

B.C.

Before: Justice L.M. Baldwin

Heard on: May 8, 2014; May 14, 2014; July 15, 2014; July 16, 2014; July 17, 2014; August 12, 2014 and August 26, 2014

Reasons for Judgment released on: January 23, 2015

Counsel:

M. McGuigan — counsel for the Crown

P. Stunt — counsel for the defendant B.C.

BALDWIN J.:

Charges

[1] B.C. is charged with two counts of historical sexual assault and sexual interference on his daughter as follows:

Between the 1st day of January 1996 and the 31st day of December 2003, both dates inclusive, at the Town of Halton Hills, he did commit a sexual assault on P.C. contrary to Section 271 of the Criminal Code; and further that

Between the 6th day of August 1996 and the 5th day of August 2000, both dates inclusive at the Town of Halton Hills, being in a position of trust or authority towards P.C., a young person, did for a sexual purpose touch directly with a part of his body, to wit, his hands, the body of P.C. contrary to section 153(a) of the Criminal Code.

[2] These charges were sworn to on September 19, 2013.

Background

[3] B.C. (born 1954) was married to P.P. in Newfoundland in the mid-1970s.

[4] They had two children together B.C. (born 1977) and P.A.C. (born 1982).

[5] B.C. and P.C. divorced when P.A.C. was approximately 2 ½ years of age.

[6] B.C. moved to Ontario and later married M.C.

[7] P.A.C. would come to Ontario and spend the summers with her father.

[8] When she was approximately 10 years of age, P.A.C. left Newfoundland and lived with her father and M.C. full time.

[9] P.A.C. had a daughter when she was 18 years of age. That daughter, S.C. (born 2001), has lived with Mr. C. and his wife M.C.. They have had legal custody of S.C. for a number of years. P.A.C. consented to that Court Order.

[10] P.A.C. has applied to the Family Court to obtain custody of S.C.

[11] P.A.C.'s disclosure of historical sexual abuse are intertwined with the contested Family Court proceedings.

[12] There are four alleged similar fact complainants in this case.

[13] L.W. (born 1980), not related to the accused, alleges sexual touching when she was 8, 9 or 10 years of age. Criminal charges were never laid.

[14] N.G. (born 1977), the accused's niece, alleges one incident of sexual touching when she was between 6 and 8 years of age. Charges were never laid.

[15] C.C. (born 1963), former sister-in-law to the accused, alleges sexual touching when she was between 12 and 14 years of age. Charges were never laid.

[16] M.C. (born 1960), former sister-in-law to the accused, alleges sexual touching when she was 11 or 12 years old. Charges were never laid.

Summary of P.A.C.'s Allegations

[17] She left her mother's home in Newfoundland and moved to Ontario to live with her father and M.C. when she was approximately 10 years of age.

[18] She was 16 when she stopped going to high school. She was 17 when she got pregnant and 18 when S.C. was born.

[19] She left her father's home and moved back to Newfoundland to have the baby. She returned to her father's home with the baby in 2001.

[20] The incidents began when she was approximately 14 years of age and continued until she was approximately 18 years of age when she went into residential drug rehabilitation.

[21] The first incident happened in her bedroom at her father's house. She woke up and her father was lying beside her with his hand under her shirt caressing her breasts and her nipple. She froze and pretended to be asleep.

[22] The next incident she was asleep in her bedroom and woke up and found her father rubbing and massaging her back. He would try to touch the side of her breast. She would clench her arms tightly to prevent this. These massages happened 5 to 8 times.

[23] Another incident involved her father tickling her in his bedroom. He backed her onto the bed and kept tickling her even though she told him to stop. He did not stop and used his chin to go down her chest. He stuck his tongue in her ear and nipped at her nipple through her nightgown with his teeth.

[24] Another incident happened in the kitchen where again her father was tickling her. He pushed her tank top down and he was trying to cup her breasts. She told him to stop.

[25] When she was pregnant, she was in the TV room pretending to be asleep. Her father knelt beside her and moved his hand up her leg toward her bum. She felt his hand start to caress her. She felt his thumb go into her vagina and she froze. She said nothing to him. He told her to wake up and go to her room.

[26] The massages and tickling continued after she had S.C.

Summary of L.W.'s Allegations

[27] Her parents were friends with the C's. She and her parents would go to the C's home (Ontario) to visit. She would visit with P.A.C.

[28] She recalls 3 incidents.

[29] The first time she was in the C.'s basement. Other children were there at the time, including her sister. She recalls Mr. C. putting on a movie that had sex in it – something not appropriate for children. She remembers Mr. C. putting his tongue in her mouth and French kissing her.

[30] The next time she was alone in Mr. C.'s car. He was driving the car and she was in the front passenger seat. He reached over and undid her blouse and rubbed her breast area. She had not reached puberty. It was like he was pretending to tickle her.

[31] The third time he took her into a bedroom and laid her on the bed. He lay on top of her and put his face between her legs and rubbed his mouth and nose back and forth against her crotch. She believed they were both clothed.

Summary of N.G.'s Allegations

[32] She was asleep in her bedroom in her parent's house. Her Uncle B. (the accused) was visiting.

[33] She woke up and her Uncle was standing over her. His hands were touching her vaginal area, possibly over her underwear.

[34] When he left the room she went on the floor and screamed very loudly hoping her mother would come in. She heard her Uncle tell her mother not to worry, that she was just having a nightmare. Her mother did not come into the room.

Summary of C.C.'s Allegations

[35] Three incidents happened in her parent's house in Newfoundland after B.C. and P.C. were married. B.C. and P.C. lived at her parent's house before they got their own house. The fourth incident happened at B.C. and P.C's house.

[36] The first 3 events happened when she would be walking by the door to the bedroom B.C. and P.C. slept in. Her bedroom was right next door.

[37] B.C. would grab her and pull her into the bedroom and put her on the bed. He would be sitting on the bed and would pull her on top of him and hold her by the waist. She would be facing out. She could feel his erection. Both of them were fully dressed.

[38] She does not know if she struggled to get out or he voluntarily let her go. There was no attempt to touch her breasts, backside or buttocks. He would hold her for a few minutes.

[39] The fourth event happened at P.C. and B.C.'s house when her mother sent her over there to help P.C. with housework. P.C. was out somewhere. She was dusting the living room.

[40] B. was hiding behind a door and he grabbed her and put her on top of him as he was sitting on a chair. It was the same as the other incidents with her facing out and him holding her with his arms and pushing his erection toward her. She told him to let her go.

[41] After a few minutes of that, he lifted her up towards the couch and laid her down and got on top of her and pushed his erection toward her vaginal area. She told him to stop and said that she would tell. He said, 'no you would not want to break up P.C.'s marriage when she is expecting her first baby'.

[42] Then he started to unbutton her jeans and pull down her zipper. He put his hand inside her underwear and started touching her vagina. She was crying and telling him to stop. He started to pull down her jeans when there was a sound of a car in the driveway. She jumped up and ran to the bathroom crying.

Summary of M.C.'s Allegations

[43] The incidents happened in her parents' house in Newfoundland and at B.C. and P.C.'s house.

[44] Her mother would send B.C. to her bedroom to help her with her homework. She had difficulty with her school work due to learning disabilities. There was no desk in the room. They would sit on her bed to do the homework.

[45] He started to touch her breasts over her clothes. More than once he touched a 'little bit of her bum'. It was always over clothing.

[46] One time she was lying down on the bed and he was touching her. He always said, "Don't tell P., no one is going to believe you."

[47] Every time he helped her with her books he touched her. It went on for years. He always had his clothes on. He did not touch her skin.

[48] She would go over to B.C. and P.C's house to babysit. More than once he would be using a lint brush to clean her uniform school pants, and he would feel her bum with his hand.

[49] Other times, he would chase her around the table trying to get her – like he was trying to tickle her. He would get her and touch her bum or her breasts. He did that a few times – not a lot.

The Crown's Position

[50] The Crown submits that the probative value of the similar act evidence outweighs its prejudicial effect.

[51] The Crown submits that the accused has a situation-specific propensity to use his trusted position and status in a household to sexually exploit young girls he finds in vulnerable places, or that he places these vulnerable girls into such places.

[52] It is submitted that the probative value of the evidence is as follows:

(1) to assist in proving that the actus reus of the offence occurred;

(2) to show a pattern of similar conduct in similar circumstances;

(3) to rebut the inference that the offences would not have happened due to other persons being nearby;

(4) to rebut the defences of innocent association, lack of intent or accident.

[53] The Crown submits that there is no air of reality to any collusion between the witnesses. It is submitted that there is no evidence of a motive to collude.

[54] The Crown submits that they have met their onus on a balance of probabilities to have the evidence admitted on the trial at large.

[55] The Crown referred to the following authorities during submissions:

R. v. Handy, 2002 SCC 56; R. v. Shearing, 2002 SCC 58; R. v. T.L.M., 2012 SCC 6; R. v. J.W., 2013 ONCA 89; R. v. R.B., 2011 ONCA 1871; R. v. J.M., 2010 ONCA 117; R. v. U.C., 2009 ONCA 1805; R. v. R.B.; R. v. C.J.P., 2004 ONCA 1531; R. v. Soares, 2013 ONSC 4561; R. v. M.E., 2011 ONSC 6177; R. v. Niemi, 2008 ONSC 4621; R. v. M.B., 2008 ONSC 2358; R. v. Finelli, 2008 ONSC 2242.

The Defence Position

[56] The defence opposes this application and submits that this type of propensity evidence is presumptively inadmissible.

[57] The defence submits that unlike many of the cases referred to by the Crown, none of the similar act witnesses chose to pursue charges. Accordingly, none of them are on the same Information before the Court and none of them are cases where prior guilty pleas have been entered.

[58] The defence submits that Mr. C.'s ex-wife P. has been involved in the disclosures made to police by her sisters M.C., C.C., and niece N.G. All of these witnesses came forward after P.A.C. went to police and after the contested custody proceedings had commenced.

[59] The defence submits that these witnesses have communicated their allegations through P.C. and other family members. The defence submits that this is a case of 'complaint by committee' with a motive to assist P.A.C. in her custody proceeding. The defence submits that these complainants have colluded with each other directly or indirectly through other family members.

[60] The defence submits that the evidence called on this voir dire is not reasonably capable of belief. It is submitted that all the witnesses were vague about allegations that happened many years ago and, with the exception of L.W., were not proximate in time to that alleged by P.A.C.

[61] It is submitted that the alleged incidents are not similar in nature. Some incidents are alleged when other people were in the same room; some when other people, including parents, were in the house; some when no one else was around. In every case, the complainants told no one at the time what father B.C., Uncle B.C., brother-in-law B.C. or good family friend B.C. was doing to them.

Analysis

[62] The seminal case in this area of the law is still the Supreme Court of Canada's decision in R. v. Handy.

[63] After examining the evidence on the application, I have concluded that almost all of the prohibited uses of propensity evidence apply to this case. I have concluded that the prejudicial effect of this evidence outweighs its probative value and it is not to be admitted.

[64] As stated by the Supreme Court in Handy, the principal driver of probative value is the connectedness of the evidence to the alleged offences. Factors that may support admission of such evidence include proximity in time of the similar acts, similarity in detail, the number of occurrences of similar acts, similarities of circumstances and any distinctive features. Exclusionary factors include the inflammatory nature of the similar acts, whether the Crown can prove its point with less prejudicial evidence, the potential for distraction and whether admitting the evidence will consume undue time.

[65] Where there is an "air of reality" to actual collusion, the Crown bears the onus of proof on a balance of probabilities to show that the evidence of the similar facts is not tainted by that collusion.

[66] The charges before the Court cover a 7-year period from January of 1996 through to December 2003. P.A.C. testified that the incidents began when she was 14 years of age and continued until she was approximately 18 years of age, which is a 4-year span from 1996 to 2000.

[67] B.C. is presently 60 years of age (born 1954). His former sister-in-law M.C. is 6 years younger than him, born 1960. Her evidence was that the sexual touching occurred when she was 11 or 12 years of age. That would make Mr. C. 17 or 18 years of age at the time. M.C.'s allegations go back over 40 years. Her allegations are not proximate in time to the allegations before the Court. Her relationship to the accused at the time was different than the complainant's relationship to the accused. The acts complained of are also not sufficiently similar to be considered distinctive. The Crown has not met its onus on the issue of collusion.

[68] C.C. (born 1963) is 9 years younger than the accused. She alleges sexual touching when she was between 12 and 14 years of age. The accused would have been approximately 23 years of age at the time. These allegations are also not proximate in time to the allegations before the Court. The acts complained of are not sufficiently similar or distinctive. Again, the relationship between the parties is not the same. The Crown has not met its onus on the issue of collusion.

[69] N.G. (born 1977) alleges one incident when she was between 6 and 8 years of age. Mr. C. would be approximately 40 years of age. This incident is also not proximate in time. The relationship between the parties is different. The Crown has not met its onus on the issue of collusion.

[70] L.W. (born 1980) alleges sexual touching when she was 8, 9 or 10 years of age. The accused would be approximately 56 years of age. This incident is closer to the main allegations before the Court. The allegations were not sufficiently similar or distinctive. The relationship between the parties is different. Ms. W.'s evidence was also vague.

[71] For these reasons the similar fact application is dismissed.

Note: This matter was set for 5 days of trial following a JPT. Today is the 8th day of a continuing trial in what has become the chronic inability of counsel to accurately estimate trial time in this Region.

Released: January 23, 2015

Signed: Justice Lesley M. Baldwin