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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

R. v. J.R., 2023 ONCJ 492

ONTARIO COURT OF JUSTICE

DATE: 2023 05 11 COURT FILE No.: Toronto 4817 998 22 70004414

BETWEEN:

HIS MAJESTY THE KING

— AND —

J. B. R.

Before: Justice David S. Rose Heard on: May 1 2023 Reasons for Judgment released on: May 11, 2023

Counsel: B. McCallum......................................................................................... counsel for the Crown D. Brown, L. Board, M. Halfyard......................................... counsel for the accused J.R.

Rose J.:

RULING ON SIMILAR FACT EVIDENCE AND ISSUE ESTOPPEL

[1] Mr. R. pleaded not guilty before me to a single charge of sexual assault on D. F-H. said to have occurred on 8 June 2022. The trial is scheduled for 8 days in October, but there are interim pre-trial motion dates on May 19, August 22, and September 25 and 26. The defence seeks this ruling before the May 19 date. In this Application the Crown seeks leave to lead evidence of similar acts.

[2] For the following reasons the Application is allowed.

This Application – Overview

[3] The evidence of similar acts relates to a criminal complaint by F.J. of a sexual assault by Mr. R. said to have occurred on April 2, 2020. Mr. R. was charged with that offence but the charges were stayed by Botham J. on August 24, 2022. Botham J. found that Mr. R.’s rights under s. 11(b) of the Charter were violated and stayed the charge.

[4] The defence opposes the Crown application for three reasons: 1) the Crown is barred from relying on it because of the doctrine of issue estoppel; 2) its use is an abuse of process; and lastly, 3) the evidence of F.J. is inadmissible is because it does not meet the orthodox test for admission of evidence of similar acts.

[5] This Application has the benefit of much material. I have the police statements of both F.J. and D. F-H., as well as substantial material from the disclosure indicating private communication between Mr. R. and F.J. The messages between the defendant and F.J. appear to start on March 31, and go until April 2, of 2020 when the defendant said,

I really liked meeting you, I would really appreciate it if you let me know what you are feeling and what went wrong. I tried to be as respectful as possible and to ask if you were OK with each thing we did

Late in the day of April 28 2023 the defence filed additional material which was in the possession of the Crown. That material included the text messages quoted infra , and also intimate images which were vetted out of the Crown disclosure. For this reason the hearing of this Application proceeded in camera under s. 486, and the April 28, 2023 Application Record was sealed. It remains sealed.

The Application – Evidence

[6] F.J. made two police statements. The first was on April 4, 2020 and lasted 2 hours and 4 minutes. The second was on June 29, 2020 and lasted only 5 minutes. Both statements were recorded and transcribed. F.J. alleges that Mr. R. sexually assaulted her on April 2, 2020 at a downtown Toronto law office. I would describe the statement as detailed. The statement describes their initial connection via the web site FetLife, which apparently caters to those with particular sexual interests. It outlines a non-consensual encounter in a meeting room in an office tower. According to the Affidavit of Lauren Rogers, filed by the defence on the Application, Mr. R. was charged on May 15, 2020 with the F.J. allegation. Ms. Rogers’ affidavit asserts that Mr. R. denies any lack of consent in his encounter with F.J. Apparently the primary issues at that trial were to be credibility of all witnesses, and whether the Crown could prove lack of consent on the part of F.J.

[7] D. F-H also made a police statement. Hers was on June 22, 2022. In it she described meeting Mr. R. on FetLife, and then meeting him in person once. She is expected to say at this trial that she was then sexually assaulted in a public washroom in the King Edward Hotel. Ms. Rogers’ affidavit suggests that the trial issue will principally be whether the Crown can prove lack of consent on the part of D.F-H. There is apparently surveillance video and ancillary text messages between the accused and D. F-H after June 8, 2022.

[8] The Crown takes the position that the two allegations bear the following similarities.

F J D F H Accused meets F J on fetlife.com, a social networking website for BDSM and fetishism. Accused meets D F.H. on fetlife.com, a social networking website for BDSM and fetishism. Accused seeks younger female and lies about his age. Complainant is 34 years old and the accused says he is 59 years old (actually 64 years old). Accused seeks younger female and lies about his age. Complainant is 28 years old and the accused says he is 61 years old (actually 66 years old). Accused uses following language to build trust with the complainant: “I know a Dom must earn the trust, respect, and loyalty of a sub and cannot simply command it.” “I also believe that a Dom should respect his sub at all times and treat her as valuable property that should always be well looked after” Accused uses following language to build trust with the complainant: “ I know a Dom must earn the trust, respect, and loyalty of a sub and cannot simply command it.” “I also believe that a Dom should respect his sub at all times and treat her as valuable property that should always be well looked after” Accused makes offers to go shopping: “ I would also really enjoy taking you shoe shopping” Accused makes offers to go shopping: “ Take my sub shopping for sexy shoes ” Accused gives instructions to complainant about how to dress and prepare herself. Accused gives instructions to complainant about how to dress and prepare herself. Accused sends photos of himself dressed and asks for naked photos from the complainant. Accused sends photos of himself dressed and asks for naked photos from the complainant. Accused determines the complainant boundaries for a sexual encounter, in particular she does not want anal penetration. Accused determines the complainant boundaries for a sexual encounter, in particular she does not want to have sex in washrooms of nice restaurant. Accused sets location of sexual encounter for public location in downtown Toronto that he is familiar with. Accused sets location of sexual encounter for public location in downtown Toronto that he is familiar with. During sexual encounter ignores boundaries and without consent commits sexual act the complainant did not want to perform, in particular anal penetration. During sexual encounter ignores boundaries and without consent commits sexual act the complainant did not want to perform, in particular vaginal penetration in restaurant washroom.

[9] The Crown asks me to consider the other following additional factors: 1) proximity in time of the similar acts; 2) the objective improbability of coincidence; and 3) the relative importance of the issue to which the evidence relates. The evidence impacts key issues at trial.

[10] The Application also includes the ruling by Botham J. from August 24, 2022. In that ruling Justice Botham made various findings leading to her ultimate finding that Mr. R.’s Charter Rights under s. 11(b) had been violated. Those preliminary findings include: the reasons why a first trial date in December 2021 did not proceed; the impact of waiting for the Supreme Court to release its reasons in R. v. JJ, 2022 SCC 28; the impact of the police inability to search the phone seized from Mr. R.; which portions of the delay would be attributable to the defence; efforts by both defence and Crown to move the case forward; the impact of the defence delaying a judicial pre-trial to await the outcome of the forensic investigation of Mr. R.’s phone; defence unavailability for the first trial date; and, what exceptional circumstances arose from the case, for purposes of the s. 11(b) analysis.

Issues

i) Is the FJ evidence presumptively inadmissible in law?

[11] Mr. R. argues that this evidence is inadmissible because the Crown is barred by the doctrine of issue estoppel, or alternatively it is an abuse of process. He also argues that the FJ evidence does not meet the orthodox test for admission of evidence of similar acts.

Issue Estoppel

[12] The defence asks me to find that R. v. Field, 2004 ONSC 8449 is on all fours with the case at bar and is authority for the proposition that when a charge is stayed for delay the allegations underlying the stayed charges cannot be used later as evidence of similar acts. I disagree. In Field the defendant had been charged in 1988 with offences against 3 complainants. Those charges were withdrawn in 1991 and then re-laid. Those charges were stayed by Minden J. for delay under s. 11(b) of the Charter in August 2003, some 15 years after the charges were first laid. The Crown conceded the 11(b) violation before Minden J. who made minimal comments about the proceeding. The operative test for an 11(b) violation at the time involved showing prejudice, see R. v. Askov (1990), 79 C.C.C. (3d) 273 (SCC), R. v. Morin (1992), 71 C.C.C. (3d) 1 (SCC). Indeed, in Field the defence showed such prejudice flowing from the 15 year delay. These included lost notes of counsel, lost notes of the defendant and lost court tapes. What is clear from Field is that McDougall J. had evidence which permitted him to go behind Minden J.’s stay of proceedings. This lead him to find (at par 25) that,

In my view, the Respondent still faces the same prejudice in making full answer in defense with respect to those similar fact evidence allegations, particularly as a result of the passage of time and the particular circumstances of this case. The same prejudice that the Respondent was facing to try and answer those charges will be confronting him in attempting to answer or defend those same allegations made in the context of similar fact evidence. This strikes me as obviously unfair and, if introduced, would affect the fairness of the trial process. In my view, the Respondent's ability to put forth a full answer in defense would, accordingly, be severely limited.

[13] In Field (supra) McDougall J. found that the defendant’s ability to make full answer and defence to the allegations involving the earlier complaint was so prejudiced the evidence was inadmissible. Trial fairness is the basis for the ruling, see Field (supra) at par. 55. McDougall J. then goes on to make legal findings that a stay of proceedings is tantamount to an acquittal based on existing jurisprudence. Having reviewed that part of his analysis I find that in law it was a) obiter , and b) inconsistent with subsequent jurisprudence regarding issue estoppel, which I will discuss below.

[14] I therefore reject Field as persuasive authority compelling rejection of the Crown application. Indeed, in Field , the Court quotes from the R. v. Rulli, 1995 CarswellOnt 3467 (CA) ( Rulli 1) when it appears the Court meant R. v. Rulli, 1999 CarswellOnt 1151 (CA) ( Rulli 2).

[15] In the case at bar the defendant has put evidence before me in opposition to the Crown application to admit similar fact evidence, but there is no basis therein for me to find prejudice in Mr. R.’s ability to test F.J.’s evidence if she were called to testify.

[16] Nor do I find Rulli 2 dispositively in favour of the defence. In that case the appellant was tried by a jury on various charges involving M. as the complainant. At that trial he faced similar fact evidence from a previous assaultive incident with another intimate partner T. Mr. Rulli had been tried and convicted of assaultive conduct against T, but after his conviction by the jury with the trial involving M., the Court of Appeal quashed the conviction in the T prosecution and stayed the charges, see R. v. Rulli, 1995 CarswellOnt 3467 (CA) ( Rulli 1 ). The principal issue before the Court of Appeal in Rulli 2 was the conviction in the case involving M.

[17] The Court of Appeal in Rulli 2 (supra) went some distance to explain why the similar fact evidence should never have been admitted because its probative value did not exceed its prejudicial effect, see Rulli 2( supra ) at pars. 8 – 17. But, as the Court of Appeal went on to say, when the T charges were stayed by the Court of Appeal, the T similar fact evidence rendered the M trial “in its totality was unfair” Rulli 2 (supra) at pa 18.

[18] I find that, in law, the issue is Rulli 2 is not the admissibility of similar fact evidence where that evidence was the subject of a stay under s. 11(b) but rather, as Finlayson J.A. put it,

21 There is authority in this court for the proposition that where the appellant has been found not guilty of the criminal conduct that was introduced in the case in appeal as similar fact evidence, this court is entitled in the interests of justice to consider whether for that reason alone the verdict can be overturned.

[19] I agree with Mr. Halfyard that the Court in R. v. Mahalingan, 2008 SCC 63 did not overturn Rulli 2. In Mahalingan the issue was the retrospective effect of a subsequent acquittal on evidence which was admitted at an earlier, different trial as evidence of similar acts. The case caused the Supreme Court to confront the challenges of issue estoppel. In other words, if the similar fact evidence was not accepted by one court, should a different court in an earlier proceeding have received it? Is the Crown estopped from leading FJ’s evidence at this trial because it has already been decided by virtue of Botham J.’s ruling on August 24, 2022?

[20] The majority opinion of McLachlin CJC outlined three elements of issue estoppel: 1) same question; 2) finality; and 3) mutuality.

[21] The same question requirement for issue estoppel asks whether the question to be estopped has been distinctly put into issue and directly determined by a court of competent jurisdiction in a prior proceeding, see Mahalingan (supra) at paras 121 - 133. This can be difficult because trials, particularly jury trials, often result in acquittals where there are no clear findings of fact underlining the verdict. Recognizing that difficulty, the Court suggested that the doctrine of abuse of process may be a more suitable method to determine the issue Mahalingan (supra) at pa 125.

[22] As McLachlin CJC put it,

52 The first requirement for a claim of issue estoppel is that the issue has been decided in a prior proceeding. This requires the court in the second trial to decide whether the issue the Crown is seeking to prove is the same as an issue resolved in the accused's favour in a prior criminal proceeding. The onus of establishing this is on the accused who seeks to bar proof of the issue alleged to have already been resolved. To establish this, the accused must show that the question was or must necessarily have been resolved on the merits in the accused's favour in the earlier proceeding. It is not enough to show that the evidence was led in the earlier proceeding and an acquittal entered. It must be a necessary inference from the trial judge's findings or from the fact of the acquittal that the issue was in fact resolved in the accused's favour.

Emphasis added

[23] Finality asks whether the prior determination finally disposed of the issue purported to be still alive. While determinations such as acquittals are final, if the issue said to be estopped was necessarily found in favour of the defendant then the defendant will have satisfied the finality condition Mahalingan (supra) at paras 55, 138 & 139.

[24] The mutuality requirement would seem to have no application in criminal law because there is only ever one plaintiff in a criminal proceeding.

[25] While the Court in Mahalingan ultimately retained the doctrine of issue estoppel in criminal law, it did not fully address the problem posed by case at bar. Much was made in oral argument of McLachlin CJC’s dicta in paragraph 77, which was:

77 It is not necessary in this case to resolve the question of whether issue estoppel applies to situations where there is a disposition such as a stay at a first trial: see, for example, R. v. Regan (1998), 131 C.C.C. (3d) 286 (N.S. S.C.); Rulli. On the one hand, cases of stays often involve determinations not based on the merits, and thus may not give rise to any factual findings (or, as Professor Stewart points in relation to entrapment, factual findings contrary to the accused may have been made, since entrapment is not even considered until after a finding of guilt has been made (pp. 389-90)). On the other hand, in many cases where a stay was issued for reasons such as abuse of process or unreasonable delay, the factors which led to the stay may still be compelling when an attempt is made by the Crown to use the evidence at a later proceeding. It may well be that a more flexible approach such as abuse of process should be used for these cases, rather than issue estoppel. However, as this case does not engage a fact situation involving a stay of proceedings, I leave that issue for a future case.

Emphasis added

[26] If the Court had been of the view that any prior judicial stay, for delay under s. 11(b) for instance, was a legal bar to admissibility of evidence at a later proceeding it would have been very easy for it to say so. To that extent McDougall J.’s dicta in Field (supra) is consistent with the language from Mahalingan that the “…the factors which led to the stay may still be compelling when an attempt is made by the Crown to use the evidence at a later proceeding…”. This suggests quite strongly that the trial fairness analysis from Field ( supra ) continues to be a method of determining legal admissibility of similar fact analysis. In the context of a legal test for a stay of proceedings under s. 11(b) pre- R. v. Jordan, 2016 SCC 27 this makes sense.

[27] I find that, in law, the Court in Mahalingan (supra) at pa 52 found that issue estoppel will be applied where there is a finding adverse to the applicant on the evidence or issue sought to be used in a later proceeding. McDougall J.’s obiter comments in Field place great emphasis on the res judicata aspect of a stay of proceedings. Clearly Mr. R. is no longer in jeopardy as regards the FJ allegations by virtue of Botham J.’s ruling. In my finding this Application raises a different question, namely whether the issue has been decided by the stay of proceedings issued by Botham J. In my finding it has not.

[28] Having considered the jurisprudence I would not find in law that the Crown is estopped from putting the FJ evidence before the Court as evidence of a similar acts. Plainly, her evidence was never heard in Court so it cannot be said it was considered by a judge of criminal jurisdiction. The result from Botham J.’s ruling is certainly final, but there has been no articulated determination of the FJ evidence nor can any be inferred on the record before me. As the authors Paciocco, Paciocco and Stuesser write, “ A judicial stay because of trial delay, on the other hand, will not serve as a bar to similar fact evidence” citing R. v. D.N.C., 2011 ONCA 672, see the Law of Evidence 8 th edition (2020), Irwin Law at page 77.

[29] I would also find that the fact that Mr. R. had been charged with the FJ incident at the time of the DF-H allegation is admissible in the Crown case if the Crown wishes in order to rebut a possible mens rea to the current charge. I find that the FJ evidence fits within the “Ollis” exception discussed by the Court in Mahalingan at paras 62 & 63 . Namely, the FJ evidence is also admissible for the purposes of proving state of mind because he was facing those allegations on June 8. The Application record establishes that Mr. R. was on release from the FJ case on June 8, 2022.

Is use of the FJ evidence an abuse of process?

[30] Mr. R. argues that there is another reason why the Crown is barred from tendering the evidence of FJ. He claims it is an abuse of process. Mr. R. relies on Mahalingan ( supra ), as well as R. v. D.N.C., 2011 ONCA 672. In D.N.C. the accused was tried for two separate sets of allegations against the same complainant. In the first trial the complainant refused to testify mid-trial, and the judge stayed the case rather than grant an adjournment. The first set of allegations was then used at the second trial and the jury convicted. The question before the Court of Appeal was whether the Crown was estopped from using the evidence which was stayed at the first trial as evidence of similar acts at the second.

[31] What is clear in D.N.C. is that the judicial stay granted at the first trial was, in the Court of Appeal’s view, tantamount to an acquittal. Had the trial judge not stayed the charge an acquittal was inevitable. This was the functional equivalent of an acquittal on its merits, and so the Crown was estopped from using the evidence from the first trial at the second. In the Court of Appeal’s view the first trial was disposed of on its merits, R. v. D.N.C. at paras 12 - 18 .

[32] The Court went further, and found that a second reason why the evidence could not be used at the second trial was because it was an abuse of process. This finding tended to mirror the Court’s finding on issue estoppel insofar as,

20 As explained above, the disposition made by the first trial judge, amounted, in substance, to a judicial determination on the merits in favour of the appellant. We cannot agree that the appellant should be deprived of the benefit of that determination because the judge attached a legally erroneous label to the disposition he made. It would be fundamentally unfair to the appellant to be faced with the same allegations as the centerpiece of the later prosecution simply because of a legal error on the part of the first trial judge in his selection of the appropriate remedy.

[33] There need not be prosecutorial misconduct in order to find abuse of process, and in D.N.C. the Court found none, but the circumstances of that case amounted to an abuse of process. Obviously, the appellant in D.N.C. had been acquitted after one day of trial of allegations brought into the second trial. That is an abuse of process. No such situation exists in the case at bar.

[34] I find that Mr. R. was never tried on the FJ allegations on their merits and it seems never will be. No evidence was called other than materials for use on the 11(b) Application. There is nothing in the 11(b) record which might found impropriety on the part of the Crown. He is not in jeopardy for those allegations. The Crown seeks use of FJs evidence to bolster its case against D F-H. He has never confronted FJ before on her allegations. Under these circumstances I can find no abuse of process. This case comes nowhere near being one of the clearest of cases.

[35] In the result there is no legal bar to the Crown using the similar fact evidence if it meets the orthodox test for admissibility.

Is the similar fact evidence admissible?

[36] I would limit my comments on the similarities and dissimilarities outlined by the Crown and defence. The trial has not started on its merits and this is only a ruling about the admissibility of evidence. The weight of any piece of evidence has yet to be established and argued.

[37] There is nothing in the Application which suggests collusion between FJ and D F-H. That is not an issue. Furthermore, the evidence of FJ is capable of belief, having reviewed the text messages between the defendant and F.J.

[38] The Crown seeks to admit FJ’s evidence at this trial to rebut the defence of innocent and mistaken belief in consent, to prove the actus reus; to negate the defence of innocent association or accident, to rebut recent fabrication and support the credibility of the complainant.

[39] The defence argues for a lack of similarities, highlighting the following:

D F-H FJ Respondent requested they message over “Kik” to be more secure. Parties do not talk on the phone. Parties talked over email, text message, and for a half hour phone conversation prior to meeting. Accused does not mention talking on “Kick” for security. No indication accused told complainant about his personal history Accused told complainant about his history getting into BDSM; his prior sexual experiences; and the state of his marriage No indication the Respondent provided his real name prior to meeting the complainant Following his phone call, he uses his name “B.” Complainant described “diaper fetish” and “age play” and parties engaged in extensive discussion about this Respondent told complainant he has a foot fetish and discussed the potential for a threesome. No discussion of “age play” or diapers. Discussions about painting her toenails, wearing an anklet and a toe ring Accused does not encourage complainant to try anal sex or indicate that he wants to engage in anal sex with her In discussing anal sex, complainant mentions she is inexperienced and would have to build up trust, and accused responds that he enjoys it and encourages her to try it Parties discuss “water sports” fetish 5 No discussion of “water sports” or similar fetishes Parties discuss a fantasy about sex in a public washroom; accused describes enjoying sex in public situations like Oasis nightclub Parties do not discuss sex in public No plans to meet for sexual activity – plan to meet for a drink Plans to meet to assess chemistry and perhaps escalate to initial “play session” Respondent did not tell complainant to wear anything specific, she told him she would wear a t shirt and leggings Respondent instructed complainant to wear clothes like she worked at his firm as a secretary, a toe ring, an anklet, nail polish and lipstick Discussion about engaging in daddy/daughter roleplay Discussion about engaging in boss/secretary roleplay Respondent did not tell complainant to send any pictures prior to meeting as an “assignment” Respondent gave complainant an “assignment” of taking nude photos before the meeting with “consequences” for failing to complete her assignment Respondent was wearing workout clothes and seemed to have just come from a workout Respondent was wearing dark jeans, a belt and shoes, and a button-down collared shirt Respondent drank two beers, complainant drank water prior to the encounter Complainant and accused both drank wine during and after the encounter Sexual encounter took place in public - washroom of hotel, after meeting at restaurant Sexual encounter took place in private - empty workplace during covid No consensual sex acts described Complainant describes BDSM-related consensual sex acts including undressing and fellatio prior to allegation Encounter not recorded Encounter consensually videotaped and photographed Non-consensual sex acts alleged were kissing; forced undressing; forced fellatio; forced vaginal penetration Non-consensual sexual act alleged was anal penetration Complainant alleges accused used force during sexual encounter and “manhandled” her including holding her by the throat Complainant does not allege force used during sexual encounter Complainant alleges accused paid for her parking and offered her $500/ “allowance” for future sexual encounters in a Sugar daddy/Sugar baby relationship Complainant did not allege any offers or exchange of money for sex; accused did not pay for parking

[40] Even the alleged dissimilarities highlighted above must confront internal consistencies, namely roleplay, fetishes, and use of alcohol. The first two are in my finding fairly unique identifiers.

[41] Evidence of past discreditable conduct which only serves to blacken the character of the accused is presumptively inadmissible. Bad character evidence may not be used as circumstantial proof of conduct, see R. v. Handy, 2002 SCC 56. The Crown may not, therefore adduce evidence of bad conduct by the accused unless “it has established on a balance of probabilities that the probative value of the evidence in relation to an issue in the case outweighs the prejudicial effect”, see Mahalingan (supra) at pa 163.

[42] The connectedness, cogency, or probative value of the similar act can be examined using various factors:

(1) proximity in time of the similar acts ( D. (L.E.) , supra, at p. 125; R. v. Simpson (1977), 35 C.C.C. (2d) 337 (Ont. C.A.), at p. 345; R. v. Huot (1993), 16 O.R. (3d) 214 (Ont. C.A.), at p. 220;

(2) extent to which the other acts are similar in detail to the charged conduct: Huot , supra, at p. 218; R. v. Rulli (1999), 134 C.C.C. (3d) 465 (Ont. C.A.), at p. 471; C. (M.H.) , supra, at p. 772;

(3) number of occurrences of the similar acts: Batte , supra, at p. 227-28;

(4) circumstances surrounding or relating to the similar acts ( Litchfield , supra, at p. 358);

(5) any distinctive feature(s) unifying the incidents: Arp , supra, at paras. 43-45; R. v. F. (D.P.) (1999), 171 Nfld. & P.E.I.R. 183 (Nfld. C.A.), at paras. 104-5 ; Rulli , supra, at p. 472;

(6) intervening events: R. v. Dupras, 2000 BCSC 1128, [2000] B.C.J. No. 1513 (B.C. S.C.), at para. 12 ;

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

See R. v. Handy, 2002 SCC 56 at pa 82

[43] Notably, the context of the similar fact evidence is important, see R. v. Hoggard, 2022 ONSC 3048. Mr. R. argues that there is nothing similar as between FJ and D F-H, and no unique features between them. I disagree. While the weight and veracity has not been established or argued, there are real consistencies between the allegations of FJ and D F-H involving partnering for sexual contact over a social media site involving sexual interests involving BDSM, fetishes, the nature of such a sexual relationship, sexual boundaries and the stylized nature of the proposed encounter. That is the context of the proposed evidence and establishes probative value to the evidence of FJ that rises to the standard required.

[44] I have considered the potential for prejudice to Mr. R. The moral prejudice is in my finding minimized because this a judge alone trial. Bench trials often hear evidence which is inadmissible. Trial judges are expected to charge themselves to both inadmissible evidence, and to consider other evidence for limited purposes. This will substantially reduce any moral prejudice, see R. v. Roks, 2011 ONCA 526 at pa 94 .

[45] The reasoning prejudice is said to flow from “…the distraction of the trier of fact from its proper focus on the charge itself” see Evidence , by Paciocco, Paciocco and Stuesser (supra) at page 94. In this case I have considered the allegation of FJ. which takes place on one night only. It is a single allegation. Ms. McCallum submits that the 8 day trial accommodates FJs evidence within that time frame. This trial is about allegations involving the complainant D F-H. All parties are reminded of that. I therefore find that the reasoning prejudice is minimized.

[46] In sum the prejudice to Mr. R. is substantially reduced because this is a judge alone trial and because the evidence of FJ is relatively confined to one event.

[47] For these reasons the Crown Application is allowed.

Released: May 11, 2023 Signed: Justice D. Rose