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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2023 01 30 COURT FILE No.: Halton Info # 1211210 2757

B E T W E E N :

HIS MAJESTY THE KING

— AND —

J.M.

Before Justice Jennifer Campitelli Heard on January 18, 2023 Reasons for Judgment released on January 30, 2023

Counsel: Jim Coppolino ……………………………………………………….. counsel for the Crown Etai Hilzenrat …………………………………………………counsel for the accused J.M.

CAMPITELLI J.:

[1] J.M. faces three counts on the information, which is before the court. That he:

(1) Between the 4th day of February in the year 2006 and the 1st day of January in the year 2015 (both dates inclusive) at the town of Halton Hills in the said Region and/or elsewhere in the Province of Ontario, did commit a sexual assault on M.M.R. contrary to section 271 of the Criminal Code of Canada; and

(2) That J.M. between the 4th day of February in the year 2006 and the 1st day of January in the year 2015 (both dates inclusive) at the Town of Halton Hills in the said Region and/or elsewhere in the Province of Ontario, did for a sexual purpose touch M.M.R., a person under the age of sixteen years directly with a part of his body, to wit: his tongue and hands, contrary to section 151 of the Criminal Code of Canada.

[2] J.M. faces a third count on the information, which is before the court; however, I understand from the crown that J.M. will not be arraigned with respect to that count. Further, the crown has clarified that with respect to the second count, the crown will be seeking an amendment to remove the word “tongue”, following what it anticipates the evidence of the complainant will be, after considering her statement, which formed the basis of this application.

[3] The crown has brought an application to introduce, at J.M.’s trial, youth allegations of sexual assault, which were withdrawn at the request of the crown on November 3, 2022. The allegations at issue allegedly involve the same complainant and relate to two separate incidents, which would have occurred when J.M. was between the ages of eleven and thirteen years old, approximately and the complainant was between the ages of six and eight years old, approximately.

[4] The evidence the crown seeks to adduce is presumptively inadmissible. In order to overcome the presumption of inadmissibility, the crown has to establish, on a balance of probabilities, that the probative value of the proposed evidence outweighs its prejudicial effect: R. v. J.W., 2022 ONCA 306, [2022] O.J. No. 1875 at para. 19 (C.A.).

The Youth Allegations the Crown Seeks Admission of as Prior Discreditable Conduct

[5] The first allegation involves an incident, which allegedly occurred when the complainant was visiting her Grandparent’s home in Georgetown, Ontario. The complainant alleges that J.M. exposed himself to her and had her touch his penis. The complainant also recalls J.M. having her perform oral sex on him, telling her it “was the same as a lollipop”. The complainant remembers J.M. “like doing the same to me”. Of significance with a view to the crown’s argument, with respect to this incident in particular, is the complainant alleges J.M. told her “not to say anything to anybody and that it’s normal”.

[6] The second series of allegations are all encompassed within the context of a game the complainant used to play with J.M. called “RatRatRat”. While playing that game, the complainant alleges that J.M. would make her sit on his lap and would “like try to fondle me”. In terms of frequency, the complainant alleges that this happened more than two or three times.

The Allegations, which J.M. will Answer to at Trial

[7] With a view to count one on the information, the complainant alleges that, when she was “probably like sixteen” and J.M. was in his early twenties, “maybe around twenty-four”, he tried to lift up her dress in an elevator and exposed himself to her. She recalls he was “trying to like force himself on me”; however, eventually the elevator stopped, and the complainant ran off before anything could happen.

[8] Moreover, with respect to count two on the information, the complainant alleges that J.M. picked her up from a party when she was “like fifteen” and drinking with her friends. The complainant recalls that J.M. brought her to his mother’s house and “like attempted to have sex with me but I was able to stop him”. The complainant remembers that, on that occasion, she was intoxicated and J.M. “attempted to try and touch me”.

The Governing Principles on the Admissibility of Discreditable Conduct

Defining the Issue: What is the issue or issues to which the Crown asserts the prior discreditable conduct is relevant?

[9] The first step is to define with specificity the issue to which the evidence is asserted to be relevant because “probative value cannot be assessed in the abstract. The utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact”: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at para. 73 (S.C.C.).

[10] On the record before me, the crown argues the prior discreditable conduct is relevant to proving the actus reus of the offences alleged. In particular, the crown grounds its application on the youth allegations being relevant with respect to establishing motive. That J.M. exhibited a pattern of behaviour, specifically, a sexual attraction towards the complainant at an early age, which makes it more likely he committed the assaults alleged when he was an adult. Further, the crown argues J.M. had “groomed” the complainant though his conduct when they were both young persons. This alleged “grooming”, on the crown’s theory, resulted in J.M. believing he could participate in the alleged assaults when the pair were much older, should the opportunity present itself, and the complainant would remain silent as she had done previously.

[11] Therefore, the crown asserts J.M.’s alleged conduct as a youth makes it more likely that he committed the acts alleged as an adult, in the manner alleged by the same complaint. J.M. strongly opposes this application and takes great issue with this assertion by the crown.

Identifying the Probative Value of the Discreditable Conduct

[12] The assessment of probative value varies from case to case and involves a fact specific analysis. Identity cases are different from cases involving motive, which is the basis of the application before me. I found Watt J.A.’s analysis in R. v. J.M., 2010 ONCA 117, [2010] O.J. No. 585 (C.A.) instructive, at paragraph 91 in particular:

91 The degree of similarity required to justify reception in a case will depend on the issues raised in the case, the purpose for which the evidence is preferred and the other evidence in the case: Handy at para. 78. Where the evidence of similar acts is summoned in support of proof of the actus reus, it is not an invariable requirement that there be a strong peculiarity or unusual distinctiveness underlying the events being compared: Handy at para. 81. The cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused's conduct in closely defined circumstances. What becomes necessary in such cases is a persuasive degree of connection between the events of alleged similar acts and the offence charged in order to be capable of raising the necessary inferences: Shearing at paras. 48 and 50. The underlying unity need not lie in the distinctive nature of the acts themselves but may reside in the circumstances in which those acts occurred.

[13] The crown stresses it is seeking admission of the youth allegations in support of proof of the actus reus. Therefore, it urges the court to focus its analysis on the repetitive and predictable nature of J.M.’s conduct in closely defined circumstances. On this record, when he is in the company of the complainant. The crown takes the position that any degree of similarity underlying the events is not as significant with respect to my assessment of probative on this application, given the purpose for which the crown seeks admission of the prior discreditable conduct.

[14] It is the crown’s position the prior discreditable conduct is relevant and material in order for the trier of fact to properly understand the nature of the relationship, which existed between the complainant and J.M. over an extended period of time. To this end, the crown argues the youth allegations allow the trier of fact to appreciate J.M.’s sexual attraction to the complainant and thus, his motive to engage in the alleged behaviour as an adult. In short, they put the incidents alleged in context. On the crown’s theory, this was a pattern of behaviour, which repeated itself whenever J.M. was in the company of the complainant, and an opportunity presented itself. Moreover, the crown takes the position that the youth allegations, in particular where J.M. is alleged to have discouraged the complainant from reporting, made it more likely that he would have engaged in the incidents alleged by the complainant as an adult. On the crown’s theory, J.M. would have been of the belief that the complainant would remain silent, and the youth allegations provide the necessary context.

[15] The evidentiary record put before me reveals a break in contact between these parties for approximately ten years. The crown was pressed on this large gap in time between the youth allegations and the allegations J.M. faces as an adult. Specifically, I pressed the crown on what impact the obvious lapse in time might have on any probative value, which might be attributed to the discreditable conduct alleged. The crown acknowledged these facts are distinguishable from cases such as R. v. D.S.F., [1999] O.J. No. 688 (C.A.), where there is an established and long standing domestic relationship. However, the crown stressed the youth allegations remained cogent, as they suggested repetitive and predictable behaviour on the part of J.M. when he was in the presence of the complainant.

[16] J.M. strongly opposed any suggestion the youth allegations were probative to any issue at trial. Counsel, on behalf of J.M., stressed the lack of similarity between the allegations. Moreover, with a view to the circumstances in which the allegations are alleged to have occurred, J.M. submitted they would have changed dramatically in ten years. He argued that both parties would have matured and underwent significant developmental changes. It is J.M.’s position that any sexual attraction, which is alleged to have existed while he remained a youth, is certainly not probative of whether an attraction still existed some ten years later. He further argues the context in which all of the allegations are alleged to have taken place is very general. Therefore, it would be improper and in fact dangerous to attach any probative value with a view to context.

[17] J.M. points out that the nature of the familial relationship between himself and the complainant is not in dispute. He reminds the court that vague terms such as “narrative”, “context” and “background”, cannot serve as a substitute for a careful assessment of how the evidence will assist the trier of fact in understanding other admissible evidence, what inferences the trier of fact may properly draw from the evidence, and how impermissible reasoning can be prevented: R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129 at para. 122 (C.A.).

[18] I agree with the crown that, on this evidentiary record, there was not an invariable requirement that there be a strong peculiarity or unusual distinctiveness underlying the events being compared: R. v. Handy supra. at para. 81 (S.C.C.). However, on my review, I find the lengthy break in contact between these parties, during a period of time where J.M. transitioned to adulthood, is significant in my ultimate analysis. Lapse of time opens up a greater possibility of character reform or “maturing out” personality change, and would tend to undermine the premise of continuity of character or disposition: R. v. Handy supra at para. 122. I have concluded this break in the relationship between the complainant and J.M. undermines any probative value, which could be attached to an established pattern of behaviour on his part. I don’t find that allegations suggesting J.M. was sexually attracted to the complainant when he was between the ages of eleven and thirteen are probative of whether he had a sexual attraction to that same complainant as an adult, some ten years later.

[19] With a view to the crown’s argument that the youth allegations are also probative with respect to its theory that an established relationship of “grooming” was present; again, I find the break in the relationship undermines any probative value, which could be attached to that evidence. J.M. was between the ages of eleven and thirteen when the youth allegations are alleged to have occurred. The complainant does allege that he told her “not to say anything to anybody”; however, there is no further evidence on this record of an established relationship of “grooming”. Considering J.M.’s age when he is alleged to have made that statement, together with the significant gap in the relationship which followed, I do not find there is an evidentiary basis to draw the inference the crown submits is available. To be clear, I do not find J.M.’s alleged comment to the complaint, which discouraged her from reporting the alleged sexual assault as a young child, suggests he was likely to believe that she would remain silent when the adult incidents are alleged to have occurred.

Identifying the Prejudicial Effects of the Discreditable Conduct

[20] Evidence showing the accused has committed an offence that is not the subject matter of the charge before the court can give rise to two forms of prejudice on the part of the trier of fact: “moral prejudice” and “reasoning prejudice”: R. v. J.W. supra at para. 26.

[21] Moral prejudice identifies the risk of convicting the accused because he is a “bad person” rather than based on proof that he committed the offences being alleged before the trier of fact: R. v. J.W. supra at para. 27 citing David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020) at pg. 93. To appropriately address this risk, moral prejudice requires the trial judge in a judge alone trial to self-instruct against the tendency to infer guilt based on the “forbidden chain of reasoning…from general disposition to propensity”: R. v. Handy supra at para. 31. Of note, “self-instruction by judges can reduce, but will not eliminate the risk of moral prejudice.” R. v. J.W. supra at para. 31 citing David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020) at pg. 93.

[22] J.M. argues that the dated and collateral nature of the youth allegations impact his ability to respond and thus, result in an inherent prejudice. The crown does not dispute this submission.

[23] J.M. further stresses the nature of the allegations themselves, in that they are more “inflammatory” than the incidents the complainant alleges occurred when he was an adult. Ultimately, J.M. takes the position that admission of the youth allegations raises a risk of moral prejudice, which cannot be overcome by the trier of fact self-instructing on this record. With respect to this aspect of the defence position, the crown disagrees and submits I am able to self-instruct to prevent the “forbidden chain of reasoning” from influencing my analysis.

[24] On these very specific facts, I find there is a notable risk of “moral prejudice” for the following reasons in particular:

(1) The dated nature of the youth allegations; and

(2) The nature of the youth allegations themselves. On the evidentiary record before me, they include more inflammatory conduct, which I find increases the risk of “moral prejudice”.

[25] Reasoning prejudice identifies a risk that the trier of fact will be distracted from a “proper focus” on the charge itself, which is aggravated by the consumption of trial time dealing with allegations of multiple incidents, in divergent circumstances rather than the single offence charged: R. v. J.W. supra at para. 27. Distraction, as a part of reasoning prejudice can take different forms. One form is emotional, in that the discreditable conduct may raise sentiments of “revulsion and condemnation”, which might deflect from the rational and dispassionate analysis upon which the criminal process should rest: R. v. J.W., supra at para. 28 citing R. v. D.(L.E.) (1987), 20 B.C.L.R. (2d) 384 (C.A.), at para 399, rev’d , [1989] 2 S.C.R. 111 (S.C.C.). Another form of reasoning prejudice occurs when the trial focuses on the discreditable conduct itself, as a kind of “trial within a trial”. This has the potential to lengthen and further complicate the trial, possibility shifting the analysis and distracting the trier of fact from the issues on which liability turns: R. v. J.W. supra at para. 29 citing R. v. McDonald, [2000] O.J. No. 3315 at para. 33 (C.A.).

[26] J.M. argues that admitting the youth allegations on this record will effectively double the issues, which require my analysis. Given the youth allegations subject of this application are just that, he submits there will inevitably be a trial within a trial. J.M. stresses that admission of the youth allegations will result in undue consumption of trial time, further complicating the trial and distracting from the issues on which liability turns. Moreover, he again points to the inflammatory nature of the allegations themselves, arguing they have the potential of raising sentiments of “revulsion and condemnation”.

[27] The crown takes the position that admission of the youth allegations will not further complicate the trial process, distract the trier of fact from the ultimate issue, or result in a “trial within a trial”. Moreover, the crown argues that any prejudice attached to the nature of the allegations themselves is capable of being cured by self-instruction on this record.

[28] Of significance, the complainant is alleging multiple incidents, which occurred in divergent circumstances when J.M. was a young person. There is no question admitting the prior discreditable conduct would consume a substantial amount of trial time. I also find there is a very real possibility of a “trial within a trial” taking place on this record, where the admission of the prior discreditable conduct could distract the trier of fact away from the issues on which liability turns. Finally, the youth allegations are inflammatory, and I conclude they could potentially raise sentiments of “revulsion and condemnation”. Again, I don’t find this risk is simply overcome by the trier of fact self- instructing.

Weighing the Probative Value Against Prejudicial Effect

[29] Probative value and prejudice pull in opposite directions on the admissibility issue and their conflicting demands must be resolved: R. v. Handy supra at para. 149. Generally, the more highly probative the evidence, the more likely it is that the interests of justice will require it to be admitted because of society’s interests in getting to the truth of the charges. However, a fair trial process requires that the dangers of propensity evidence be taken extremely seriously: R. v. J.W. supra at para. 36 citing R. v. Handy supra at para. 150.

[30] A trial judge has no discretion to admit prior discreditable conduct evidence where the prejudicial effect outweighs probative value: R. v. Handy supra at para. 153. After carefully considering the entire evidentiary record placed before me, I have concluded the prejudicial effect of the youth allegations the crown seeks admission of outweighs any probative value.

Conclusion

[31] In the result, the crown’s application is dismissed.

Released: January 30, 2023 Justice Jennifer Campitelli