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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Carter-Teixeira, 2019 ONCJ 102

DATE: 2019 02 07

COURT FILE No.: Brampton 3111 998 17 8034

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BRANDON CARTER-TEIXEIRA

Before: Justice G.P. Renwick

Heard on: 04, 05, and 06 February 2019

Reasons for Judgment released on: 07 February 2019

Counsel: C. Sibian .............................................................................................. counsel for the Crown M. Schwartzentruber .................. counsel for the defendant Brandon Carter-Teixeira

Ruling on Similar Fact Evidence Application[^1]

RENWICK J.:

INTRODUCTION

[1] The prosecution seeks to use the evidence of each of the two complainants to prove both sexual assault allegations. The Defendant opposes the application.

[2] The parties filed written submissions in advance of the hearing of the evidence and agreed that the evidence called by the prosecution during the trial could apply to this application. Evidence was heard over three days from the two complainants, L.A. and M.A. Several exhibits were filed and no evidence was called by the Respondent on the Application.

[3] The prosecution submits that the evidence of each allegation of sexual assault contains significant similarities that cannot be the product of mere coincidence. Further, given the issues that will arise during the trial there is a high degree of probative value which attaches to the similar (cross-count) evidence which easily outweighs any prejudice occasioned by granting the Application.

[4] The Defendant argues that there is an "air of reality" to the suggestion that an unintentional tainting has occurred in respect of M.A.'s evidence which undermines the improbability of coincidence as a basis for the similar fact application. Also, the two accounts of sexual assault are markedly different when all of the circumstances are considered. Without the foundation of significant similarity between the two events the likelihood of coincidence increases, the probative value decreases, and accordingly, the Applicant cannot discharge its burden of probable proof, so the Application must fail.

ISSUES

[5] The following issues arise on this Application:

i. Has there been any tainting of M.A.'s evidence by her exposure to the existence and/or the substance of L.A.'s complaint;

ii. Are the two complainant's accounts sufficiently similar; and

iii. Does the probative value of the proposed evidence outweigh the potential prejudice.

THE LAW

[6] The parties agree on the relevant governing principles and they disagree on the application of the law in this case. The law governing similar fact evidence ("SFE") comes from the Supreme Court decision in Handy:

Similar fact evidence is [thus] presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.[^2]

[7] As well, there is no contest that the Applicant must disprove collusion on a balance of probabilities:

The Court in Arp, supra, concluded that the test for the admission of similar fact evidence is based on probability rather than reasonable doubt (paras. 65, 66 and 72). Accordingly where, as here, there is some evidence of actual collusion, or at least an "air of reality" to the allegations, the Crown is required to satisfy the trial judge, on a balance of probabilities, that the evidence of similar facts is not tainted with collusion. That much would gain admission. It would then be for the jury to make the ultimate determination of its worth.[^3]

[8] In the case at bar, the Respondent does not suggest that there is any evidence of actual collusion, instead, at issue is the opportunity for unintentional collusion by the tainting of M.A.'s evidence. I acknowledge that it would be an error of law for a trial judge exercising the gate-keeper function in relation to the admissibility of SFE to fail to consider an air of reality to the assertion of unconscious collusion.[^4]

[9] Inadvertent or unintentional collusion can range from a deliberate modification or exaggeration of one’s testimony, in order to make it more convincing, to the subtle influence of knowledge from other sources.[^5]

[10] Obviously, if there has been an unintentional collusion by the tainting of the SFE, the cogency of the evidence – the improbability of coincidence – is reduced, thus undercutting the foundation (enhanced probative value) for this type of evidence.

[11] However, the mere opportunity for unintentional collusion does not render the SFE inadmissible to the trier of fact if the evidence is otherwise sufficiently probative:

The evidence went beyond mere "opportunity", which will be a feature in many cases alleging sexual abuse with multiple complainants. The issue is concoction or collaboration, not contact. If the evidence amounts to no more than opportunity, it will usually best be left to the jury.[^6]

THE POSITIONS OF THE PARTIES

[12] The prosecution argues that the probative value of the SFE is to rebut possible defences (general denial and fabrication)[^7] and to assist the court in the ultimate credibility assessment of the individual complainants. Furthermore, it is established on a balance of probabilities that there was no collusion, intentional or otherwise which would have tainted M.A.'s evidence. Lastly, given that a judge alone will decide this case, there is a reduced risk of moral or reasoning prejudice, and in any event, the probative value eclipses any prejudice because there is a persuasive degree of connectedness between the SFE and the offence charged beyond mere coincidence.

[13] The Respondent's defence of the Application rests on two limbs: the unintentional tainting of M.A.'s evidence and the dissimilarities between the complainants' allegations which reduce the probative value of the SFE below prejudicial equivalence.

ANALYSIS

General Comments

[14] In my role as the gate-keeper of admissibility, I must guard against applying standards more properly reserved for my role as the ultimate trier of fact.[^8] In respect of SFE, if I determine it is admissible in this trial, I am not precluded ultimately from discounting the evidence completely or giving it very little weight.

[15] During the submissions on the Application I asked counsel for the Respondent whether I had to make credibility findings to determine the Application. Counsel agreed that the court could make a preliminary determination of credibility, without usurping the court's role as the ultimate trier of fact. As a gate-keeper of the admissibility of SFE, I must acknowledge the limitations of my role: on this application I am only required to determine whether each complainant's evidence (if believed by the trier of fact) is capable of nullifying the probability of coincidence as between their respective accounts to the degree that the probity of the evidence overcomes any prejudice to the Defendant by its admissibility. Ultimately, as the trier of fact, if the SFE is admitted during the trial, I would have to determine what weight, if any, to give to the SFE evidence. Again, at this stage, I need only consider the potential probative value of the evidence in relation to its potential prejudice.

Collusion: Unintentional and Intentional

[16] On the evidence adduced on the hearing, there is not a scintilla of proof of actual collusion as between the complainants. Instead, counsel for the Respondent suggests that there is an air of reality to the suggestion of an unintentional collusion as the result of tainting. M.A. only reported her allegations after she had read an article linked on the website for the governing body of massage therapists, from which she learned that the Defendant had already been arrested in relation to an "adult victim" who had attended a "wellness clinic in Brampton" "for the purpose of receiving a massage" on "July 6, 2017:" see the Peel Regional Police media release, Exhibit 5.

[17] In respect of M.A.'s evidence, counsel for the Respondent submits that unintentional tainting occurred given her knowledge of the existence of a similar allegation (inappropriate touching in the course of a therapeutic massage at the same clinic two days later). The jurisprudence does not support such a finding.

[18] In Dorsey the complainants had knowledge of rumours on the street and media reports. The suggestion of inadvertent collusion was made on the basis of "information that was available" to the complainants.[^9] In that case, "some of the particulars of the assaults were made public" in news articles.[^10] In finding that the trial judge erred by removing from the jury's consideration the issue of unintentional collusion the Court of Appeal held:

Where the similar fact test is met, that is, the probative value of the evidence outweighs its legally prejudicial effect, but there is also evidence of actual collusion among the complainants whose testimony constitutes the similar fact evidence, the Crown must show, on a balance of probabilities, that the evidence of similar fact is not tainted by collusion. If the Crown is unable to satisfy this onus, and the judge finds actual collusion among complainants, he must exercise his gatekeeper function and deny the similar fact application. However, where the evidence shows only the opportunity for collusion or collaboration possibly tainting the evidence, then the matter should be left to the jury. The jury must consider the effect of the possible collusion when deciding the weight to be given to the similar fact evidence. At para. 111 of Handy (above), Binnie J. says, "if the evidence [of collusion] amounts to no more than opportunity, it will usually be left to the jury."[^11]

[19] In this case, there was also the suggestion of collusion because it was learned at the start of the second day of hearing evidence that the husband of M.A., Mr. P.A., had been watching the proceedings on the prior day. Once this came to the attention of the court, I conducted an inquiry of P.A. to learn more about his unanticipated presence at court. When questioned, P.A. gave an unsworn statement from counsel table to the effect that he had heard and understood the order excluding witnesses from the prior day, he took that order seriously, and he did not communicate the substance of the evidence he had heard to M.A. Eventually, upon the request of both parties, P.A. was asked to leave the courtroom on the basis that he could possibly become a witness on the hearing (on the issue of collusion) and/or at the trial.

[20] M.A. testified that P.A. had come to the court the day prior as a sign of support for her and he had not communicated with her about the contents of any evidence he had observed. I believed this evidence. It was simple, unadorned, and candid. It stood unrebutted.[^12] Again, although there was an opportunity for collusion, there is a dearth of evidence to support the Respondent's suggestion of an air of reality of actual collusion.

[21] I am satisfied on a balance of probabilities that the Applicant has met its burden to displace collusion (actual or unintentional) as a bar to the reception of SFE in this case. At the end of the trial, if the SFE is admitted into evidence, the court will have to consider what role if any collusion or tainting of the evidence factors into the assessment of M.A.'s testimony and the ultimate value of the SFE.

Probity versus Prejudice

[22] In Handy, supra, the Supreme Court leaves little to the imagination regarding how this analysis is applied. The proposed evidence need not be "conclusive,"[^13] but rather:

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.[^14]

And the Court further held:

Similarity in this respect does not necessarily require a strong peculiarity or unusual distinctiveness underlying the events being compared, although similar facts manifesting a singular trait (such as necrophilia) would likely be a powerful tool in the hands of the prosecution.[^15]

[23] During submissions, the Respondent noted 17 dissimilarities of varying degrees between the two accounts of alleged sexual impropriety. I agree that conduct that is so dissimilar or equivocal does not raise an inference capable of overcoming prejudice.[^16] However, the Respondent's accounting seems to miss the point. 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 admissible evidence. Again, at this stage, I am to consider admissibility not ultimate weight.

[24] I have assessed the degree of similarity between the two versions of testimony as significantly similar in the following ways:

Leading up to the alleged sexual assaults the Defendant:

a. Shared personal details about himself and talked more than each complainant found usual for a massage therapist;

b. Sought to perform a gluteal massage that was not requested nor suggested by the complainants verbally, or in the health questionnaire completed before the massage;

c. Did not tuck the sheet to protect exposure of body parts not being massaged;

d. Removed the complainants' underwear to the mid-thigh;

e. Massaged the entire buttocks of each complainant rather than the gluteal muscles; and

f. Massaged the inner thigh of each complainant without request or permission.

and

During the inappropriate touching the Defendant:

g. Used more than one finger to touch the vaginal lips of the complainants;

h. Made contact with each complainant's vagina using his fingertips in circular, brushing movements; and

i. Continued a repetition of the sexual assault by touching each complainant's vagina multiple times.

[25] When applied toward the issues of assessing each complainant's credibility and rebutting the defence of denial or fabrication, these similarities cold provide significant probative value in the determination of this case. The similarity of each account appreciably reduces the probability that the two narratives are simply the product of coincidence. The fact that each alleged assault occurs closely in time at the same massage clinic increases the improbability of chance.

[26] Instead, there is a strong likelihood that a trier of fact could find in the circumstances of this case that the Defendant displayed a distinct pattern of behaviour which supports a positive credibility assessment of each complainant.

[27] In terms of prejudice, the Respondent acknowledges that a bench trial reduces the risk of inappropriate propensity reasoning. However, it is suggested that moral prejudice remains if the SFE is used to impermissibly establish guilt on one count on the basis of a finding of guilt on the other.

[28] At least two points must be made. First, the risk of improper or flawed reasoning need not be reduced to zero before SFE can be admitted. If it is more likely than not that the probative value of the SFE outweighs the prejudice that exists by its admission, the test for admissibility is made out. It is ultimately up to the trier of fact to determine if and how far the SFE tilts the balance on the issues to which the evidence is directed. Second, in this case, moral prejudice is reduced because the acts complained of across both sets of allegations are similar in nature. Besides the differing quantity of the inappropriate touching that is claimed to have taken place, the conduct alleged is the same. The SFE would not be so inflammatory as to inflame the fact-finder's passions or to skew the assessment of the evidence.

[29] The court is also well aware that proof beyond a reasonable doubt on a given count is not established simply because another allegation is found to be proven. Although the proposed evidence is unfavourable to the Defendant by its potential to bolster the credibility of each complainant, it is not unfair or misleading to admit the evidence on that basis alone.

CONCLUSION

[30] After a careful consideration of all of the evidence, the submissions (both oral and written), and the cases presented, I am satisfied that it is likely the case that the probative value of the proposed SFE outweighs any prejudice to the Defendant by admitting this evidence.

[31] In the final analysis, I am satisfied on a balance of probabilities that the proposed cross-count evidence is admissible to prove the unrelated allegation, subject to a finding of collusion or the assessment of weight to be apportioned by me upon the conclusion of the trial.

[32] The Application is granted.

[33] Both counsel are to be commended for their able submissions and the professionalism with which this Application was argued.

Released: 07 February 2019

Justice G. Paul Renwick

[^1]: Note that there is a ban on publication of information identifying the complainants.

[^2]: R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57 at para. 55.

[^3]: Handy, supra, at para. 112.

[^4]: R. v. Wilkinson, [2017] O.J. No. 5056 (C.A.) at para. 32.

[^5]: R. v. Dorsey, [2012] O.J. No. 1377 (C.A.) at para. 19.

[^6]: Handy, supra, at para. 111. See also Dorsey, supra, at para. 26.

[^7]: In its factum, the Applicant also suggested that the SFE could rebut the defence of accident, however, the Respondent does not intend to raise this defence.

[^8]: For a similar discussion on the risks of overstepping the gate-keeper's bounds, see Handy, supra, at paras. 94-97 and 105.

[^9]: Dorsey, supra, at para.19.

[^10]: Dorsey, supra, at para.20.

[^11]: Dorsey, supra, at para. 26.

[^12]: My preliminary assessment is not entirely unique: during submissions, Counsel for the Respondent noted that the witness was "very fair in her evidence" with respect to the malleability of memory.

[^13]: Handy, supra, at paras. 94-96.

[^14]: Handy, supra, at para. 76.

[^15]: Handy, supra, at para. 81.

[^16]: Handy, supra, at para. 124.