Non-Publication and Non-Broadcast Order 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 05 04 Court File No.: Dryden File No. 1541 998 22 15400047

BETWEEN:

HIS MAJESTY THE KING

— AND —

E.L. and V.S.

Before: Justice D.J. MacKinnon

Heard on: April 26, 2023 Decision on Similar Fact Application on: May 4, 2023

Counsel: C. Bell, for the Crown R. Sinding, for the defendant E.L. K. Jones, for the defendant V.S.

MacKinnon J.:

[1] This is a Seaboyer application brought by the Crown to allow similar fact evidence of discreditable conduct from a prior proceeding related to one of the accused, to be entered into the upcoming trial. The accused, VS (mother) and EL (father) are the parents of the complainant D.L.

[2] The charges faced by the accused are:

That EL and VS between the 1st day of January 2012 and the 1st day of May 2016 at the City of Dryden in the said Region, did for a sexual purpose touch D.L., a person under the age of sixteen directly with a part of his or her body, to wit: her vagina, contrary to section 151 of the Criminal Code;

That EL and VS between the 1st day of January 2012 and the 1st day of May 2016 at the City of Dryden in the said Region, did commit a sexual assault on D.L. contrary to s.271 of the Criminal Code.

[3] The allegations underlying these charges are that the father would bring the child back to bed with he and his wife. They would take turns putting their fingers inside and outside of her vagina and be involved in mutual masturbation during that time.

The Similar Fact Evidence

[4] The Crown seeks to have the conviction of the accused EL and the decision of the court in that matter admitted. The Crown describes the evidence they wish to have entered into the trial of these charges as follows:

The nature of the similar fact evidence arises from a prior sexual assault conviction against the same D.L. E.L. was found guilty after trial on February 13, 2023 of sexual assault contrary to s.271 and of being in a position of trust or authority towards D.L., a young person, did for a sexual purpose, touch directly the body of D.L. with a part of his body to wit; his penis, contrary to s.153(1)(a) of the Criminal Code.

[5] For the purposes of this argument, the Crown submitted the decision of Justice Hoshizaki on this conviction, which includes a description of the facts as found by her.

[6] The decision of Justice Hoshizaki finds that, “The accused is the father to the complainant and in a position of trust and authority. She was totally dependent on him. I accept as fact that the father touched the complainant’s vagina and had her touch his penis for a sexual purpose.”

Positions of the Crown and Defence

[7] The Crown states that the discreditable conduct evidence is to be entered for the following purpose:

The proposed evidence is relevant to the actus reus, mens rea and to rebut implausibility of acts. The proposed evidence is highly probative. It is admitted conduct relevant to specific issues in this trial. The proposed evidence is not prejudicial – as this is a judge alone trial there is not risk of improper reasoning.

[8] In argument, the Crown suggested the following purposes at trial for the admission of this evidence:

a. To provide the context and narrative related to the familial relationship;

b. To explain the delayed disclosure in that context;

c. To defend against a recent fabrication claim;

d. To support that the actus reus occurred due to the similarities with the conviction case;

e. To demonstrate a modus operandi as to the similarities with the actions of the father in the previous case.

[9] The accused EL is very opposed to the admission of the conviction and decision. He argues the following:

a. The facts are not facts;

b. The decision of Justice Hoshizaki should not be admitted because there is still sentencing to be done and it may be appealed by the accused;

c. The subject charges result from a later statement given by the complainant about actions occurring before the conviction events;

d. A mistrial should be declared as the trial decision was provided to the court on this application;

e. The complainant has a right to counsel in a Seaboyer application;

f. Allowing the evidence in would open the complainant to cross-examination on her previous evidence;

g. The purpose of having a second judge to hear the second trial is so that there is no prejudicial thinking in this trial.

[10] The lawyer for V.S. did not submit materials but agreed with arguments of EL and further submitted that prejudice would result to her client in this trial.

[11] An issue was raised as to whether the complainant DL needed to consent to this application or to be served. Unlike a s.276 application I find that it was not necessary to engage her in this process and that such has been specifically noted in R. v. Goldfinch 2019 SCC 38.

The Law

[12] The general rule is that evidence of prior extrinsic misconduct or propensity is to be excluded from admission in a trial.

[13] In regard to the rationale for this, the Supreme Court of Canada in R. v. Handy 2002 SCC 56, [2002] 2 S.C.R. 908 said the following:

The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible: Arp, supra, at para. 38; Robertson, supra, at p. 941; Morris, supra, at pp. 201-2; R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, at p. 613. (para. 37)

[14] The court went on to determine that the Crown bears the onus of showing, on a balance of probabilities, the relevance of the evidence, and that the probative value of the similar fact evidence outweighs its potential prejudicial effect.

Relevance

[15] This concept is described in Her Majesty the Queen v. Evans et al 2019 ONCA 715 by Watt J.A.:

183. As we saw earlier, relevance is not an inherent characteristic of any item of evidence. Relevance exists as a relation between an item of evidence proposed for admission and a proposition of fact the proponent seeks to establish by its introduction. Relevance is a matter of common sense and everyday experience. Relevance is also relative, not absolute. We assess whether an item of evidence is relevant in the context of the case in which the evidence is tendered, not in the abstract…

[16] The context of this case is the sexual assault and interference with the child D.L. by both of her parents. The prior case involved sexual assault and interference with the child by one of these parents. The finding was that the child had been sexually assaulted contrary to s.271 and that there had been sexual touching contrary to s.153(1)(a). The family dynamics, the situation of the child, the method of initiation or interference may be elements to be considered. It is relevant if there has been sexual relations in the dynamics of this family.

[17] Watt J.A. goes on in the Evans case to caution that there are two important aspects of relevance to consider. Evidence can still be relevant even if it can support more than one inference and, “an item of evidence need not prove conclusively the proposition of fact for which it is offered…”. (para 184)

[18] In this case the facts are relevant to support the findings the Crown is seeking even if they are not conclusive, or even if the findings are not made.

Materiality

[19] The materiality of the facts are found within the parameters of the charges themselves. Not all evidence is material. For example, the type of car driven by an accused may not be material unless there is an allegation that a criminal act took place in that vehicle.

[20] In the case of a charge under s.271, the material facts are whether the complainant was touched or assaulted in a sexual manner. Consent, of course, is not an issue due to the age of the complainant at the time. Evidence related to these factors is material.

[21] The facts in the prior decision are material as they are directed to similar issues within this case.

Probative Value

[22] The court must determine if the evidence sought to be admitted by the Crown is probative.

[23] The discreditable conduct evidence alleged in this case is connected to the facts found in the prior case. Trials of sexual offences involve issues of credibility and reliability, interpersonal dynamics, power and control issues. Memory and detail play a key role. Many of these issues are found in trials with child witnesses, or witnesses testifying to events that happened as a child. All of these are elements at this trial that need to be examined and assessed by the court.

[24] The similarities between the matter before this court and the decision of Justice Hoshizaki include that the father and the child are the same, the allegation is of touching of the vagina of the child, the child is alleged to have been taken from her bed by the father and into his bed, and that there existed a position of trust or authority by the father over the child.

[25] Discreditable conduct evidence can be used in part to establish mens rea. For example, an individual who claims that an action occurred as an accident, or that a circumstance was unknown or coincidental, can be shown to have knowledge and understanding by virtue of previous cases. The Crown seeks in this case to reduce any claim by the defence of innocent interaction by showing the prior conviction. The evidence has probative value related to mens rea.

[26] I find that the evidence is probative in regard to the actus reus of the charges. The Crown must prove that the actus reus occurred, and in such cases, modus operandi and patterns can be indicators that support such a determination.

[27] In denying the appeal in the case of R. v. R.C. 2020 ONCA 159, Jamal J.A. approved of the trial judge’s assessment of the probative value of the similar fact evidence. He said,

I do not agree that the trial judge failed to assess the probative value of the similar fact evidence in relation to the issues at play at trial. Apart from being relevant to and probative of the actus reus, the trial judge permitted the similar fact evidence to support the credibility of the complainants, to demonstrate a pattern of behaviour, to negate a defence that the complainants were fabricating, and to defy coincidence with respect to the offences alleged. (para 65)

[28] There is high probative value in this case of the discreditable conduct evidence as this involves a child complainant. The Crown alleges a pattern of behaviour and particular dynamics of trust and control. In addition to its relevance, the findings of fact in the prior case have already been made by Justice Hoshizaki.

Prejudice

[29] In any case in which the prior criminal behaviour of the accused is entered as evidence, the court must be careful to assess the prejudicial effect on the fairness of the proceedings. As Watt J.A. says in Evans, “…The danger of this evidence is its tendency to generate both moral and reasoning prejudice that may serve as impermissible substitutes for proof.” (para 193)

[30] There is no doubt that there is a prejudice to the characterization of the accused as a prior perpetrator in regard to this particular complainant. A court must be very careful not to consider propensity as a result of the entry of the similar fact evidence. Each trial of a criminal charge must be viewed as a separate and distinct issue of proof for the Crown. The Crown suggests this is easier in a judge alone trial.

[31] The second person directly prejudiced by the entry of this similar fact evidence is VS the mother of the complainant. There may be some shadow to fall upon her as a result of evidence to be entered that was arrived at in a trial to which she was not an accused. There is also the possibility that her defence will be strengthened by the finding that EL has been convicted of sexual assault and interference involving the same complainant. The manner in which the evidence unfolds will be more persuasive than the facts in a case that VS was not an accused.

[32] Balancing these issues, I believe that the probative value of the evidence outweighs the prejudice that may result. The probative value is greater because it can assist in highlighting facts similarly evidenced or distinguished. The court can set some strictures so that the prejudicial effects are recognized and ameliorated when possible.

Prior Judicial Decisions

[33] The defence in this case argued that the decision of Justice Hoshizaki and the conviction of EL cannot be relied on as the decision will likely be appealed by his client. EL has not yet been sentenced.

[34] Courts have previously had to determine if a criminal conviction of an accused should be admitted into a trial.

[35] In R. v. G.(S.G.) 1997 311 (SCC), 1997 2 SCR 716, the Supreme Court allowed the admission of the criminal record of the accused of having sexual relations with a minor, to show her degree of control over him in regard to a murder charge. The court found that it was relevant to an issue, and was properly admitted after an assessment of the probative and prejudicial elements. The court found it could be taken into account related to credibility.

[36] In the case of R. v. Jesse 2012 SCC 21, the accused opposed evidence of his previous conviction being entered and even denied that he was the earlier perpetrator. He tried to keep the evidence of his previous conviction out of the trial on the basis that it was suspect. In refuting this approach to the entry of a record, Justice Moldaver of the Supreme Court said:

I reject that line of thinking. In my view, jury verdicts and verdicts rendered by judges alone are presumptively reliable and, when it comes to the issue of identity, they should be treated that way unless overturned on appeal or later shown to be wrong …verdicts are not mere “opinions” they are the considered results of informed deliberations and, as a result carry a high degree of reliability. (my emphasis)

[37] The decision of Justice Hoshizaki is inherently and presumptively reliable and has not been overturned on appeal.

Viva Voce Evidence

[38] The defence suggests that the decision regarding the admission of this evidence must be founded upon the evidentiary record of the trial and during a voir dire incorporating viva voce or oral evidence.

[39] I find that is not the case in these circumstances.

[40] In the appeal case of R. v. Snow, 2004 34547 (ONCA), 2004 O.J. 4309 (ONCA) the trial court admitted extrinsic discreditable conduct evidence. On appeal the Ontario Court of Appeal upheld the decision of the trial judge not to require oral evidence during the voir dire, as the evidentiary basis was composed of transcripts of pleas by the accused to related charges and preliminary hearing transcripts. The court said that, “the admissibility of the similar fact evidence did not require the testing of circumstances surrounding the evidence, nor was there uncertainty about what the witnesses might say.”

[41] Proceeding without oral evidence must be a cautious action. In the case of R. v. Aragon, 2022 ONCA 244, Paciocco J.A. found that the trial judge should not have proceeded at the admissibility hearing on the basis of “will say” statements to determine if the extrinsic discreditable conduct was admissible. The credibility and reliability of the witnesses had not been tested. (para 43)

[42] In the case at bar, the Crown seeks to enter evidence already vetted and found in a court of law on the basis of the evidence heard. It is highly reliable. As such, there is no need to have viva voce evidence in regard to this admission.

Decision

[43] The conviction of EL and the decision of Justice Hoshizaki dated February 13, 2023 are admissible because they are relevant evidence where the probative value outweighs the prejudicial effect. This is not to say that there are not dangers that the trial before this court could veer into a re-trial of the charges that were before Justice Hoshizaki. I intend to reduce that by limiting the trial proper.

[44] I make the following order;

1. The conviction of E.L. and the decision of Justice Hoshizaki dated February 13, 2023 are admissible in the trial of these charges.
2. At the trial of the charges currently before this court, neither the Crown or the Defence shall question the complainant DL in regard to the substance of or the circumstances of the convictions of February 13, 2023.

Released: May 4, 2023 Signed: Justice D.J. MacKinnon