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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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: 2024 07 02 Court File No.: Hamilton 998 23 47101722

Between:

His Majesty the King (Applicant)

— And —

J.H. (Respondent)

Before: Justice Davin M.K. Garg

Heard on: June 3 and 21, 2024 Ruling on Similar Fact Application released on: July 2, 2024

Counsel: Morgan Ross, for the Crown Geoffrey Read, for the respondent J.H.

GARG J.:

[1] The Crown applies to admit extrinsic evidence of the respondent’s prior discreditable conduct for a similar fact purpose. The respondent is charged with committing sexual offences against his young daughter on four occasions in her home. He previously pleaded guilty to the offence of corrupting a child. The Crown seeks to use the facts underlying that guilty plea—the respondent masturbating while kneeling between the complainant’s legs while she slept—as similar fact evidence to assist in proving the actus reus of the offences charged. I find that the probative value of the extrinsic evidence outweighs its prejudicial effect. The application is granted.

Relevant facts

[2] This is a pre-trial application to adduce extrinsic similar fact evidence. The trial is set to commence on July 2, 2024. I am deciding this application based on how the complainant is expected to testify.

The alleged offences

[3] The respondent is charged with committing four counts each of sexual assault and sexual interference against the complainant between June 1 and September 10, 2017. The complainant is the respondent’s biological daughter. She was eight years old at the time of the alleged offences. She lived with her three siblings and shared a bedroom with one of her sisters.

[4] The complainant is said to have disclosed the alleged offences in 2022. She described sexual assaults that occurred in her bedroom and provided details of four incidents. During all four incidents, the respondent is said to have entered her bedroom and climbed into her bed. The specific allegations break down as follows: [1]

(1) First incident: The complainant describes wearing a nightgown and told the police that she “felt his mouth on my vagina”. The respondent performed oral sex and left when he was finished.

(2) Second incident: The complainant says that the respondent crawled into her bed and again performed oral sex. This time, the complainant opened her eyes and saw that it was her father. The respondent looked up from performing oral sex and said “Shhh, don’t tell Mommy”.

(3) Third incident: The complainant was attempting to sleep when she says that the respondent came into her room and put his erect penis in her mouth, wanting oral sex. The complainant pretended to not be able to breathe and choked. The respondent apologized and said he was sorry.

(4) Fourth incident: The complainant says that the respondent attempted to put his penis in her anus. The complainant explained that it hurt when he was trying, but she was able to keep moving away. The complainant explained that “he wasn’t able to do it”, and the respondent eventually left.

[5] The respondent was arrested for these offences on March 1, 2023.

The extrinsic evidence

[6] The Crown seeks to tender extrinsic evidence regarding a fifth incident that occurred on September 11, 2017—shortly after the alleged fourth incident. The Crown wishes to elicit the evidence from three sources: the complainant’s testimony, her mother’s testimony, and the transcript of a guilty plea dated March 2, 2018. The defence takes no issue with the transcript being tendered at trial if this application is granted. As the transcript is the only source of evidence available to me at this time, I will review it in some detail.

[7] The respondent pleaded guilty to the following charge of corrupting a child:

… on or about the 11th day of September, in the year 2017 … did in the home of [the complainant], indulge in a form of vice and thereby render the home an unfit place for the child to be in, contrary to the provisions of Section 172(1) of the Criminal Code of Canada.

[8] The respondent accepted the facts read-in by the Crown in support of the plea. His counsel added facts during submissions. The Crown on this application accepts that the added facts form part of the factual matrix since they were not disputed during the plea.

[9] The facts are as follows. The respondent and the complainant’s mother were in an on-again, off-again relationship. They have four children together, one of whom is the complainant. The respondent spent the night at the complainant’s family home on September 11, 2017. The complainant was sharing a bedroom with her sister on the second floor. The complainant was sleeping on a mattress on the floor. At approximately 1:30 a.m., the complainant’s mother was doing laundry and went to gather some clothes from the girls’ bedroom. The door of the room was slightly open. Upon opening the door, the mother saw the respondent kneeling between the legs of the complainant. He was masturbating with his pants down to his knees. The complainant was asleep and laying on her stomach. Her legs were apart, and she was not wearing underwear.

[10] The respondent had not touched the complainant in any way. There is no evidence or suggestion that the respondent had any intention of touching the complainant. He chose to masturbate in her bedroom because it was the only place in the house where he could view adult pornography on the equivalent of a television. He thought he was masturbating surreptitiously. He did not first cover up the complainant because he was afraid of disturbing her. The respondent sent an e-mail afterwards to the complainant’s mother to apologize and admit his wrongdoing.

Legal analysis

[11] The extrinsic evidence in this case is discreditable conduct. It is discreditable because it relates to an offence that is not the subject matter of the charges before the court. The Crown seeks its admission for a similar fact purpose.

[12] There is a general exclusionary rule against the admission of evidence that goes merely to an accused’s disposition: R. v. B. (C.R.), [1990] 1 S.C.R. 717 at 734-735. It is forbidden to infer guilt from an accused’s general disposition: R. v. Handy, 2002 SCC 56 at para. 139. To overcome this presumption of inadmissibility, the Crown must 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 at para. 19.

Defining the material issue

[13] “Probative value cannot be assessed in the abstract”: Handy at para. 73. I must define with specificity the issue to which the extrinsic evidence is said to be relevant: J.W. at para. 21. It is never permissible to lead this evidence to demonstrate that an accused has a general disposition to commit bad acts.

[14] The material issue is more specific in this case. The Crown seeks to rely on the proposed evidence to assist in proving the actus reus of the alleged offences beyond a reasonable doubt: see R. v. C.K., 2015 ONCA 747 at paras. 33-34. The Crown will ask me to draw an inference that the respondent has a situation-specific propensity to engage in sexual activity with or near the complainant in her bedroom while she sleeps. This situation-specific propensity, the Crown argues, makes it more likely that the respondent committed the charged offences.

[15] Whether the respondent has this “situation-specific propensity” is a valid issue on which the extrinsic evidence might assist: see C.K. at para. 39. The probative value would lie in the similarity between the extrinsic evidence and the allegations to show that the respondent engaged in a pattern or system of conduct: see R. v. Green, [1988] 1 S.C.R. 228, rev’g , 42 Man. R. (2d) 81 (CA).

Assessing the probative value

[16] The following factors are relevant to my assessment of the probative value of the extrinsic conduct. I find that the evidence has significant probative value.

The degree of similarity between the extrinsic conduct and the allegations

[17] The main factor that I must consider is the degree of similarity between the extrinsic conduct and the alleged offences. There must be a “persuasive degree of connection” between the two: R. v. J.M., 2010 ONCA 117 at para. 91. I must not fixate on the similarities and thereby lose sight of the dissimilarities: J.W. at para. 40. Dissimilarities must be considered in the same light as the similarities to determine whether they detract from the probative value of the evidence: R. v. L.B., [1997] O.J. No. 3042 (C.A.) at para. 39. I must also consider the overarching context. As the Court of Appeal explained in R. v. S.C., 2018 ONCA 454 at para. 23:

… in sexual assault cases, similar circumstances are often more compelling than similarities or dissimilarities in conduct. As noted by this court … “in cases of sexual assault, the similarities or dissimilarities between the sexual acts that are alleged are, of course, relevant, but often not as compelling as the circumstances surrounding the incidents”. [internal citations removed]

[18] When the evidence is being tendered to prove the actus reus, as opposed to proving identity, the similarities do not need to amount to a “signature”. Less cogent similarities might suffice to render the evidence admissible: R. v. Cresswell, 2009 ONCA 95 at para. 9; see also R. v. J.M., 2010 ONCA 117 at para. 91.

[19] The defence focused its arguments on the absence of similarity. The defence argues that the evidence is too dissimilar to offer probative value. The extrinsic conduct does not involve sexual activity with the complainant. The complainant’s presence while the respondent masturbated was incidental. Furthermore, the alleged conduct—cunnilingus, fellatio, and anal sex—is far more severe than the extrinsic conduct.

[20] In my view, the law does not mandate the degree of similarity suggested by the defence before the evidence can gain admission. I find that the circumstances are sufficiently similar and compelling. The fact that the respondent did not plead guilty to a sexual offence against the complainant does not strip away the inherent sexual nature of the underlying conduct: see R. v. I. (J.), 2015 ONCJ 61 at paras. 19-20; R. v. D.M., [2019] O.J. No. 3514 (Sup. Ct.) at paras. 23-24. [2] Sticking to the four corners of the agreed facts, the respondent was masturbating with his pants down while kneeling between the complainant’s legs while she did not wear underwear. He must have been physically close to her. There is no dispute that he knew that the complainant would be present when he entered her bedroom. Even if her presence was incidental to the masturbation, these were inherently sexual acts that had the potential to engage her sexual integrity. The specific charge to which the respondent pleaded guilty is predicated on the potential impact of his conduct on the complainant. When viewed through that lens, the circumstances of the extrinsic conduct are sufficiently similar to the current allegations.

[21] It is instructive to contrast this case to R. v. J.W., 2022 ONCA 306. In that case, the accused was charged with engaging in sexually inappropriate behaviour with young children at a daycare in his living room. The extrinsic conduct involved him pleading guilty to public nudity because two neighbours observed him visibly naked and masturbating in that living room. There were some similarities in the incidents: the location, the accused’s proximity to certain furniture, the act of masturbating, and the use of a towel (at para. 39). But these similarities were merely generic because the extrinsic conduct featured a colossal difference; namely, the extrinsic conduct had nothing to do with children (at paras. 40-41). By contrast, the differences in this case—that the respondent never touched the complainant during the extrinsic conduct and did not intend to victimize or sexualize her while he masturbated to pornography—do not undermine the core similarity of initiating overt sexual activity in the complainant’s close physical proximity.

[22] There are also specific factors that establish the requisite connectivity between the extrinsic conduct and the allegations:

• There are five incidents in total, all involving the same complainant, that would have all occurred while the respondent occupied a position of trust towards her.
• The incidents, if proven, all occurred within a relatively brief four-month period without any intervening events. This close temporal proximity strengthens the inference being sought by the Crown: Handy at para. 122; R. v. P.M.C., 2016 ONCA 829 at paras. 22-26. By contrast, courts have viewed a remote temporal connection as a significant strike against probative value: see R. v. R.B., [2003] O.J. No. 4589 (C.A.) at para. 69, aff’d 2004 SCC 69.
• The incidents, if proven, all disclose a similar modus operandi: the respondent entering the complainant’s bedroom, at a late hour, going onto her bed or mattress, and initiating sexual activity while she slept. The respondent was allegedly systemic in taking advantage of opportunities for privacy: see R. v. C.K., 2015 ONCA 747 at para. 38 (6).
• The respondent apologized after being caught for the extrinsic conduct. He is also said to have apologized after committing what constitutes the third alleged incident.

The strength of the evidence that the extrinsic conduct occurred

[23] There is no issue that the extrinsic conduct occurred. The respondent admitted to the conduct through his guilty plea. The strength of the evidence is relevant to its probative value: R. v. L.B., [1997] O.J. No. 3042 (C.A.) at paras. 25-26.

Possibility of collusion

[24] While the defence might argue at trial that the complainant fabricated the allegations under pressure from her mother, the possibility of collusion is not a live issue at this stage because there is no dispute that the extrinsic conduct occurred. Collusion is usually an issue where different complainants allege similar conduct by the accused. I will remind myself at the end of trial to consider any motive to fabricate when considering the ultimate weight of the evidence: see R. v. M.B., 2011 ONCA 76 at paras. 20-21.

Assessing the prejudicial effect

[25] Evidence showing that an accused committed an offence that is not before the court can give rise to “moral prejudice” and “reasoning prejudice”. Moral prejudice concerns the risk of determining an accused’s culpability based on their character as opposed to the evidence of the charged offences. Reasoning prejudice concerns the risk that the trial process will be distracted from a proper focus on the charged offences: Handy at para. 144; J.W. at paras. 26-27. It also concerns a risk that the trier of fact will place undue weight on the extrinsic conduct. I must consider any strategies or factors that would reduce the impact of the prejudice.

Moral prejudice

[26] I find there to be a moderate risk of moral prejudice.

[27] A degree of moral prejudice is unavoidable whenever discreditable conduct extrinsic to the information is tendered at trial. Instructing myself to not infer guilt based on the respondent having a general disposition to commit crimes will reduce, but not eliminate, the moral prejudice: J.W. at para. 31. The risk of moral prejudice is mitigated by me adverting to the danger at the relevant points in my decision-making: J.W. at para. 34. My training will also help to steel myself against an emotional form of reasoning.

[28] The moral prejudice is attenuated somewhat by how the extrinsic conduct is less “reprehensible” or morally blameworthy than the current allegations: see J.W. at para. 31.

Reasoning prejudice

[29] I find there to be a low risk of reasoning prejudice based on the specific circumstances of this case.

[30] First, the evidence of the extrinsic conduct is going to be heard at trial regardless of how I rule on this application. The Crown brought a Seaboyer application [3] to elicit the prior sexual activity of the extrinsic evidence. I granted that application with the consent of defence counsel, who has indicated a desire to cross-examine on certain inconsistencies in relation to that evidence. Both sides have also explained how the extrinsic conduct is intertwined with the current allegations. [4] For example, the fact that the respondent was sentenced and placed on probation for the extrinsic conduct might be relevant to the defence theory on how the current allegations came to be disclosed.

[31] Second, the Crown will not need to prove the extrinsic conduct. There will be no trial within the trial to prove what happened. The transcript of the guilty plea will supply the essential evidence of the extrinsic conduct.

[32] Third, I will implement a strategy to limit the risk of reasoning prejudice. When it comes to the extrinsic conduct, the Crown is not permitted to elicit incriminatory facts or argue for incriminatory inferences that go beyond the four corners of what the respondent admitted to at his guilty plea on March 2, 2018. This strategy will also address a defence concern that reliance on the extrinsic offence could raise questions of res judicata or issue estoppel. The Crown cannot elicit evidence or argue for an inference that the respondent had a sexual purpose or design beyond what was admitted at the guilty plea. If the respondent testifies, the Crown can put the extrinsic conduct to him but will need to follow this limitation. When examining witnesses on the other sexual activity in the extrinsic conduct, the defence will be limited to the scope of the extrinsic conduct elicited by the Crown because the defence has not brought an application under s. 276 of the Criminal Code: see R. v. Barton, 2019 SCC 33 at para. 81; R. v. Salehi at paras. 5-6.

Weighing the probative value against the prejudicial effect

[33] Based on the foregoing, I find that the probative value of the extrinsic conduct outweighs the prejudicial effect of its admission. This conclusion is premised on adhering to the strategies outlined to limit the reasoning prejudice. The prejudicial effect might exceed the probative value if the dynamic of the trial were to revolve around the extrinsic conduct and put a tactical burden on the respondent to explain his intentions for actions that are not part of the charged offences: see J.W. at paras. 44-45.

Conclusion

[34] The Crown’s application to admit extrinsic evidence of the respondent’s prior discreditable conduct is granted on the terms outlined in these reasons.

Released: July 2, 2024 Signed: Justice Davin M.K. Garg

Endnotes

[1] At a brief court appearance on June 21, 2024, the parties consented to me relying on paragraphs 2-8 of the Crown’s responding factum on the earlier s. 278.92 application as evidence of the allegations underlying the alleged offences.

[2] The inherent sexual nature of the extrinsic conduct distinguishes this case from R. v. A.M.G., 2014 ONSC 257. In that case, the accused had been charged with robbery and sexual assault with respect to a sex worker. He pleaded guilty to the lesser and included offences of assault and theft, and the facts on that plea (outlined in A.M.G. at para. 5) were not inherently sexual.

[3] R. v. Seaboyer, [1991] 2 S.C.R. 577. See also R. v. Barton, 2019 SCC 33.

[4] See also the submissions at the court appearance on May 1, 2024.