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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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: 2017-10-10

Court File No.: Halton 15-2289

Between:

Her Majesty the Queen

— AND —

Gabriel Fereira Da Silva

Before: Justice D.A. Harris

Heard on: April 19, 2017

Reasons for Ruling released on: October 10, 2017

Counsel:

• John Dibski, counsel for the Crown
• Dean Paquette, counsel for the accused Gabriel Da Silva

Ruling Re Prior Discreditable Conduct / Similar Fact Evidence

Introduction

[1] Gabriel Da Silva is charged with sexual assault upon KAL. The sexual assault is alleged to have happened on July 24, 2015 in the Town of Oakville.

[2] Crown counsel elected to proceed summarily.

[3] At the beginning of trial, Crown counsel applied for an order that the evidence of a previous assault committed by Mr. Da Silva be accepted as evidence of discreditable conduct or similar fact evidence.

[4] Both counsel agreed that this application should be argued at the end of the Crown's case. That was done.

[5] This is my ruling on that application and my reasons for making that ruling.

Legal Framework

[6] The Supreme Court of Canada reviewed the law with respect to evidence of prior discreditable conduct or of similar acts in R. v. Handy. In that decision, Binnie J. wrote:

The starting point ... is that the similar fact evidence is presumptively inadmissible. It is for the Crown to establish on a balance of probabilities that the likely probative value will outweigh the potential prejudice.

[7] That then requires an assessment of the probative value and the potential prejudice arising from the proposed evidence. I will deal with the latter point first.

Potential Prejudice

[8] With respect to potential prejudice, it is necessary to evaluate both moral prejudice (i.e., the potential stigma of "bad personhood") and reasoning prejudice (including potential confusion and distraction of the jury from the actual charge against the respondent).

[9] As I have stated in other cases, the potential for prejudice is not as significant in judge alone trials such as this one. I should be capable of recognizing the risk of either moral prejudice or reasoning prejudice. I should be equally capable of avoiding both types of prejudice. If I was not and I was unable to set aside the potential moral prejudice arising out of the similar act evidence, it would be necessary for me to declare a mistrial now and recuse myself from the case, as I have already heard the proposed similar act evidence. Such is the dilemma facing all judges trying these cases without a jury.

Probative Value

[10] The issue of probative value is more complex.

[11] The evidence must be relevant and material before it may be admitted. The Ontario Court of Appeal said in R. v. L.B. that evidence is relevant:

where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence.

[12] The evidence is material if it is directed at a matter in issue in the case.

[13] To determine that, I must understand the purpose for which the evidence is being proffered. It is therefore necessary for Crown counsel to identify the issues in question. Then, if I admit the evidence, I will be able to use it in relation to those issues only.

[14] Crown counsel has proposed that the evidence of discreditable conduct be admitted in order to:

(1) Support the credibility of the complainant;

(2) Negate the defence of consent or innocent association;

(3) Demonstrate a pattern of behaviour towards female employees; and

(4) As evidence of identity.

[15] I must however keep in mind that it is not enough for Crown counsel to simply propose that the evidence be introduced for one of these previously enumerated purposes.

[16] In R. v. Handy, supra, Binnie J. stressed that the "issues in question" are not categories of admissibility. Their identification is simply an element of the admissibility analysis which, as stated, turns on weighing probative value against prejudice.

[17] I must therefore consider the strength of the proposed evidence.

Analysis of Similar Fact Evidence

[18] Before doing this, I must first determine if the similar fact evidence is tainted by collusion. Everyone agrees that it is not. That of course does not determine the final issue. It simply allows me to proceed and weigh the relevant factors in order to determine if the application should be allowed.

[19] In R. v. Handy, supra, Binnie J. set out a number of factors connecting the similar facts to the circumstances set out in the charge:

(1) proximity in time of the similar acts;

(2) extent to which the other acts are similar in detail to the charged conduct;

(3) number of occurrences of the similar acts;

(4) circumstances surrounding or relating to the similar acts;

(5) any distinctive feature(s) unifying the incidents;

(6) intervening events;

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

[20] In the present case, there is only one similar act being put forward. Common sense tells me that this may have less cogency than a series of acts.

[21] The fact that this single incident occurred 7 years before the alleged offence gives it even less cogency.

[22] The events are similar to the extent that both allegedly involved Mr. Da Silva touching a female employee without her consent. However, the current allegations are of blatantly sexual touching. With respect to the earlier incident, Crown counsel asked me to infer that the touching was sexual, whereas the facts from the guilty plea make it clear that Mr. Da Silva disputed any such interpretation back then. Based on what has been put before me, I am not prepared to draw the inference asked of me. In light of that, the limited similarities between the two acts would not particularly lead me to draw the conclusions sought by the Crown.

[23] Finally, I note that counsel for Mr. Da Silva informed me that he is not advancing a defence of consent or innocent association. On the contrary the defence position is that Mr. Da Silva had no contact at all with the complainant. He was not even present.

Conclusion

[24] After taking all of this into account, I find that the Crown has fallen far short of convincing me that the proposed evidence has any probative value.

[25] In conclusion, despite the limited prejudicial effect that this evidence would have, I am not satisfied that it is outweighed by its probative value. The application to introduce this disreputable conduct / similar fact evidence is dismissed.

Released: October 10, 2017

Signed: Justice D.A. Harris