Warning

The court hearing this matter directs that the following notices be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Case Details

Date: March 14, 2024 Information No.: 20-220

Ontario Court of Justice

Between:

His Majesty The King

— AND —

J.B.

Before: Justice C. Malott

Matter heard: March 16, 2023, March 17, 2023, April 17, 2023, June 1, 2023, June 9, 2023, June 13, 2023, March 14, 2024

Counsel: J. Comand ........................................................................................ for the Crown T. Hughes ....................................................................................... for the Accused

MALOTT J.:

Reasons for Ruling on Crown Applications to Admit Evidence of Prior Discreditable Conduct and Other Sexual Activity

Introduction

[1] J.B. is a young person charged with one count of sexual assault against A.S., between October 1 and December 18, 2020. At the time of the alleged assault, the accused J.B. was 13 and the complainant A.S. was 12. It is alleged that there were two additional incidences of sexual assault against the complainant prior to this one, which took place when the accused was 11 years old. As such, he was never charged.

[2] The allegations in relation to this charge are as follows: between October 1, 2020, and December 18, 2020 at [name removed] School, the complainant A.S. was followed into a bathroom by the accused J.B. The accused J.B. then forced the complainant A.S. to perform oral sex on him by grabbing his head and forcing it onto his penis.

[3] The two earlier allegations took place in 2019, when both the accused J.B. and the complainant A.S. were students at [name removed] School. On one occasion, while in a janitorial closet at the school, it is alleged that the accused J.B. made the complainant A.S. pull his pants down and the accused J.B. performed oral sex on the complainant A.S.

[4] A short time later, the accused J.B. attended the home of the complainant A.S. for a sleepover. While alone in the bedroom of the complainant A.S., the accused J.B. allegedly held up a fist and forced the complainant to engage in sexual acts.

[5] The Crown has brought an application to adduce evidence of those two prior alleged incidents as prior discreditable conduct. The Crown has also brought a Seaboyer application to seek leave to introduce evidence of the two earlier alleged incidents as other sexual activity. The matter was argued before me, during which the defence opposed the prior discreditable conduct application but consented to the Seaboyer application.

[6] The Crown advised that the complainant A.S. intended to lead the evidence at trial and did not object to the Court’s reception of the evidence. The complainant A.S. was not represented by counsel at the hearing. No viva voce evidence was heard on the application; the Crown simply filed the transcript of the statement the complainant A.S. gave to police, together with a handwritten note representing A.S.’s clarification of something in the transcript.

[7] On consideration of the materials which had been provided, I requested additional submissions and caselaw. Thereafter, I dismissed both of the Crown’s applications with reasons to follow. These are those reasons.

[8] There is no caselaw directly on point in relation to this issue. I relied on the cases of R. v. Handy, 2002 SCC 56 and R. v. Z.W.C., 2021 ONCA 116, for guidance. Further I reviewed the Youth Criminal Justice Act in consideration of the unique situation presented here.

Prior Discreditable Conduct

[9] The Crown is seeking to adduce evidence of the prior discreditable conduct to support the inference that the accused J.B. had a particular propensity to engage in this specific type of conduct, and that the evidence supports the further inference that the accused engaged in that very type of conduct on the occasion charged, in keeping with his propensity to do so.

[10] Evidence of an accused’s uncharged prior discreditable conduct is presumptively inadmissible. This is due to the exclusionary rule against evidence of general propensity, disposition, or bad character. This type of evidence is inadmissible if it only goes to establishing that the accused is the type of person likely to have committed the offence in question. Such evidence is also generally inadmissible when it is tendered to establish character, as circumstantial proof of the accused’s conduct.

[11] This rule of exclusion does yield in exceptional circumstances: evidence of uncharged prior discreditable conduct may be admitted if it is relevant, material, and the Crown establishes, on the balance of probabilities, that its probative value outweighs its prejudicial effect.

[12] The Crown submits that the proposed evidence is relevant to:

(1) demonstrating a pattern of behaviour on the part of the accused J.B. that is specific to his prior interactions with the complainant A.S.; and

(2) to explain the abruptness of the sexual assault and the history between the parties.

[13] The assessment of the probative value of the evidence requires the trial judge to consider:

(a) the strength of the evidence that the extrinsic acts in question occurred;

(b) the connection between the accused and the similar acts, and the extent to which the proposed evidence supports the inferences the Crown seeks to make; and

(c) the materiality of the evidence, that is the extent to which the matters the evidence tends to prove are live issues in the proceeding.

[14] I am satisfied that the proposed evidence of prior discreditable conduct is both relevant and material to the issues in question in the charge before the Court.

[15] The parties were the same in each alleged incident. The general, overarching description of the incidents is similar. There is an objective improbability of coincidence. The issue to which the evidence relates is central to the issue at trial. There is a sufficient “connectedness” between the similar act evidence and the charge before the Court.

[16] Where I have concern is consideration of the strength of the evidence. It is difficult to make a determination as to the strength of the evidence having only read the transcript of the statement given to police. It is not possible to adequately address the important issues of credibility and reliability with evidence produced in this way.

[17] The most important consideration which must be taken into account concerns the age of the accused J.B. and the passage of time. The elapsed time between the first two and the third incidents – some two years – is of concern. The intervening act – in that during that period the accused transitioned from a child to a youth – is a critical consideration. Most importantly, as the accused was not a young person at the time, but rather a child under the age of 12, he may have lacked the mens rea, or the necessary capacity to formulate intent, in relation to the alleged incidents. In my view, this minimizes the probative value of the evidence sought to be adduced.

[18] The next step in the assessment of whether to admit evidence of prior discreditable conduct is the requirement for the trial judge to examine the prejudicial effect of the proffered evidence and balance it against its probative value. Prejudice in this context comes from two forms: moral prejudice and reasoning prejudice.

[19] Moral prejudice refers to the risk that a jury may convict on the basis of “bad personhood” and punish the accused for prior acts which do not form part of the charge. As this is a judge alone trial, moral prejudice is not of particular concern to me. I am aware of the use to which such evidence can be put.

[20] Reasoning prejudice refers to the risk that the evidence will divert the Court from its task and give the evidence more weight than it deserves, and includes the risk that the evidence will:

(a) confuse the trier of fact;

(b) distract from the actual charges;

(c) awaken sentiments of revulsion and condemnation;

(d) be impossible for the accused to respond to due to the passage of time; and

(e) consume trial time.

[21] As there is no jury in this case, I am not concerned that hearing the evidence of prior discreditable conduct would confuse the Court or awaken sentiments of revulsion and condemnation. However, I do believe that there is a significant risk in relation to the other factors.

[22] Hearing the evidence of the prior two alleged incidents has the potential to distract from the actual charges and will certainly consume trial time. As well, the gap in time between the first two and the third alleged incidents may not be as significant for an adult but would be extremely significant for a child. The passing of some two years in between incidents is cause for concern.

[23] The most significant danger in this case, in my view, is the age of the accused J.B. Always being mindful that the criminal onus cannot be reversed, the accused J.B. would be put in a position where he would have to respond, in one way or another, to allegations which took place before he was old enough to be charged. In my view, this may have the effect of the Crown getting in through the back door what it could not get in through the front door, namely indirectly charging a child with an offence when he was too young to be charged. It is not appropriate that a young person should be held criminally accountable for alleged incidents which took place years prior, when he was a child, and legally lacked the mens rea to support criminal culpability. While the passage of time is relevant, the age of the accused is the primary concern in this case.

[24] Also of note is the fact that the allegations in question are of prior sexual activity, which are also inherently inadmissible and subject to a gatekeeping function by the Court. The fact that a Seaboyer application would also be required in conjunction with this application due to the nature of the evidence sought to be adduced is an important consideration. In my view, the protection required for the young people in this case is compounded by the nature of the evidence, namely the prior, uncharged, similar act sexual activity, and the age of the parties, specifically that they were children.

[25] I find that the prejudicial effect of the evidence sought to be adduced outweighs the probative value of the evidence in this case. For the foregoing reasons, the Crown’s application to adduce similar fact evidence of prior discreditable conduct is denied.

Seaboyer Application

[26] The Crown has also brought a Seaboyer application in this case in relation to the same two alleged incidents which took place when the accused J.B. was 11 years old. The Crown wishes to adduce evidence of this other sexual activity to explain the history between the parties and the conduct and state of mind of the complainant A.S. The Crown takes the position that to prevent the complainant A.S. from referring to the prior alleged sexual assaults would prevent him from fully explaining the actions he took and did not take during the sexual assault alleged in the charge before the Court.

[27] As previously indicated, the accused J.B. consented to this application, but despite this, I dismissed it. As the trial judge, I am required to fulfil a gatekeeping function to protect against improper or unnecessary intrusions upon the complainant’s dignity and privacy rights.

[28] Firstly, I am satisfied that the Crown is not proposing to lead this evidence for the prohibited purpose of supporting the twin myths, namely that the complainant A.S.:

(a) is more likely to have consented to the sexual activity that forms the subject matter of the charge; or

(b) is less worthy of belief.

[29] R. v. Seaboyer, [1991] 2 S.C.R. 577 prohibits the admission of Crown-led evidence where the prejudicial effect of the evidence outweighs its probative value. My concerns in relation to the Seaboyer application mirror those as set out in relation to the prior discreditable conduct application, and focus on the age of the accused J.B. and the presence or absence of mens rea in relation to the alleged earlier incidents. This Seaboyer application cannot be viewed in a vacuum, and must be considered as intertwined with the prior discreditable conduct application.

[30] The accused J.B. was 11 years of age at the time of the alleged earlier incidents. He was a child, and as such, unable to be charged. Parliament took the view that a child under the age of 12 lacks the mental capacity to form intent in relation to a criminal offence. Some two years passed in between the second and the third incidents. Children process time very differently from adults, and as such, this gap in time is more significant than it would be if the parties were adults or even older teenagers. During this gap in time, the accused J.B. transitioned from a child to a youth, albeit a young youth. At the time of the alleged third incident, he was 13 years old and capable of being charged, which is what happened. To present evidence in which the accused was a child, and therefore statutorily lacking capacity to form intent, and then require him to address those acts in a criminal court setting, is troubling. Even keeping in mind that the criminal burden cannot shift, J.B. will still be required to assess and respond to the alleged prior sexual activity. In my view, this is not appropriate for a young person before the Court.

[31] I find that the prejudicial effect of this proposed evidence outweighs its potential probative value and as such, I am dismissing the Crown’s Seaboyer application.

Released March 14, 2024 (Original Signed by Justice C. Malott)

Justice Christine Malott